Lords Sitting of 24 October 2002

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Oxford): The CHAIRMAN OF COMMITTEES on the Woolsack.
The Earl of Courtown (Lord Saltersford)The Earl of Courtown (Lord Saltersford)—Took the Oath.

Pension Contributions: Tax Relief
Lord Lea of Crondall Lord Lea of Crondall asked Her Majesty's Government:
What proportion of tax relief on pension contributions accrues to the top 10 per cent of earners and whether they propose to reduce it.
Lord McIntosh of Haringey: My Lords, estimates of the amount of relief accruing to the top 10 per cent of earners are not available. However, the Government estimate that more than half the tax relief given on pension contributions goes to higher rate taxpayers, who make up around 15 per cent of contributors.
Lord Lea of Crondall: My Lords, I thank my noble friend for that reply. He will be aware of the ballpark estimate, which is widely quoted, that some 50 per cent of the £16 billion of tax relief each year on pension contributions accrues to the top 10 per cent of earners and that 25 per cent goes to the top 2.5 per cent. Does he agree that there is something topsy-turvy about that? Does he further agree that the Inland Revenue's contribution to that inequality is becoming unsustainable, not least because whereas taxpayers at the top executive level are able to take full advantage of the whole of their tax allowance, those at the standard rate—given current incentives—are unable or unwilling to do so?
Lord McIntosh of Haringey: My Lords, I do not recognise my noble friend's figures. I gave the latest available figures to answer his Question. It is certainly true that fewer than one in 20 employees put in the full amount that they could under approved pension schemes. As for his second question, which was about money going to well-off people, he will be aware that since 1989 there has been a cap on income that is acceptable for approved pension schemes. That cap is now £97,200. The very large sums going to directors in pension payments—such stories appear in the press—are normally at the expense of shareholders rather than taxpayers.
Lord Marsh: My Lords, is the Minister aware that since 1997—these are the Inland Revenue's statistics—the tax paid by the top 10 per cent of taxpayers has risen from 48 per cent of the total tax take to 52 per cent of that total? Given that a major proportion of those people are employed in wealth creation, does he
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believe that there is any point at which the process might prove to be counterproductive or even perhaps appear to be unfair?
Lord McIntosh of Haringey: My Lords, the Question is about pensions and the question of the noble Lord, Lord Marsh, is not about pensions. Yes, theoretically, if one projects any figures of that kind there will be an element of unfairness.
Lord Higgins: My Lords, I declare an interest as the chairman of a company pension fund. Is it still the Government's view—this arises from the earlier exchange—which was expressed in the 1998 Green Paper on partnership in pensions that the balance spent on pensions by the state and the private sectors will change from 60 per cent from the state sector and 40 per cent from the private sector to 40 per cent from the state sector and 60 per cent from the private sector; or is it now their view that the overall effect of their policy is to reverse that process, penalise people making private contributions of the kind mentioned by the noble Lord and move pensioners on to means-tested state benefits?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Higgins, is fully entitled to remind us of the Green Paper of 1998. But as we have a pensions Green Paper coming out before the end of this year, which will cover exactly the points raised by the noble Lord, Lord Higgins, I think it would be unwise of me to anticipate it.
Baroness Turner of Camden: My Lords, does my noble friend agree that withdrawing tax relief from middle income ranges—that is, for people paying income tax on salaries of £33,000 and above—would be counterproductive because that would mean that such people would cease to have much incentive to save for retirement? That was hinted at in the press. It is the Government's policy that people should be encouraged to save for retirement with stakeholder pensions.
Lord McIntosh of Haringey: My Lords, I have seen the reports in the press. As the Secretary of State for Work and Pensions made clear, we have no such plans.
Lord Tebbit: My Lords, is it not remarkably natural that the people who pay most tax and the people who make the largest contributions to their future pensions will be those who get the most tax relief?
Lord McIntosh of Haringey: My Lords, that is one of the opinions that will undoubtedly be fed into the Green Paper. I am not going to anticipate it.
Lord Newby: My Lords, does the Minister agree that in relation to pensions the single biggest problem area involves people at the poorer end of the income scale? In relation to that area, the Government's stakeholder pension is their principal solution. Does he accept that many life assurance companies and other companies

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no longer feel able to offer stakeholder pensions to poorer people because they would be no better off with a stakeholder pension than with the pension credit? Does he therefore accept that the Government's policies for poorer pensioners are a complete muddle?
Lord McIntosh of Haringey: My Lords, I simply do not accept what the noble Lord, Lord Newby, said about stakeholder pensions. It is not the case that stakeholder pensions are the only government policy. After all, the state second pension, which we introduced, covers 18 million people and by the end of June of this year, the stakeholder pension covered more than 1 million people. Those are successful and popular policies and they help the less-well-off people to whom the noble Lord referred.
Lord Brookman: My Lords, I am sure that my noble friend is aware of the plight of steel workers in Cardiff at the Allied Steel and Wire plant, which has gone into liquidation. Some of those employees, who paid contributions for 20 or 30 years, will not, as I read the situation, receive a pension at all. What is the Government's view of that predicament?
Lord McIntosh of Haringey: My Lords, I do not know the particular case to which my noble friend refers. If a company goes into liquidation, its pensioners are creditors and they have a right to expect some recompense. In any case, the pension fund is normally independent of the company's own balance sheet. I am surprised to hear what my noble friend said but I shall investigate and write to him about it.
Baroness Platt of Writtle: My Lords, will the Government remember, in the forthcoming Green Paper, that pension contributions are paid out of taxed income and that pensions are taxed as well?
Lord McIntosh of Haringey: Yes, my Lords, that is an element of inter-generational equity, which has been going for very many years. It was questioned only once, in a flurry of radicalism by Mr Peter Lilley before the 1997 election. That proposal did not receive much favour.

Specialist Schools
3.9 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
How many specialist schools there are and how many of those select their pupils wholly or partly on grounds of ability.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, out of a total of 992 specialist schools, 47 grammar schools have specialist status. The department does not collect figures on partial selection by ability. Secondary schools are
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allowed to select up to 10 per cent of pupils by aptitude in a specialism, but we estimate that only 6 per cent of specialist schools use that right in whole or in part.
Lord Dormand of Easington: My Lords, I thank my noble friend for that reply. However, can she give an absolute assurance that no selection by ability takes place at any of the schools now designated as specialist schools, beacon schools, city academies or any other proposed newly-designated school? These days, there are so many types of school that we have to make a comprehensive statement on them. Can my noble friend say what the Prime Minister meant by his recent remark:
"We are moving to the post-comprehensive era"?
Baroness Ashton of Upholland: My Lords, I am very happy to explain to my noble friend that the School Standards and Framework Act 1998 and all the associated regulations of which noble Lords will be well aware placed a ban on any new selection by ability other than for sixth-forms and for fair banding. Noble Lords will know that, in banding, pupils are tested and placed in ability bands with the aim of ensuring that pupils of all abilities are represented in a school's intake. As my noble friend knows, we allow schools with a specialism to give priority, to a level of 10 per cent of their intake, to pupils who have an aptitude in their specialist subjects.
My right honourable friend the Prime Minister was clear that we want to move into a world in which every child has the best possible education and that we should aim to achieve that in an equitable and fair way. Noble Lords will know that one way in which we seek to do so is by supporting our schools in recognising what unites them as well as what makes each of them special and different. We want to ensure that they have the opportunity to work with their young people in offering their specialism.
Baroness Blatch: My Lords, will the Minister explain to the House the Government's prejudice against selection of children by ability?
Baroness Ashton of Upholland: My Lords, the Government are clear that selection by ability at age 11 left us with a number of problems. First, children who were not selected to go to grammar schools experienced a great sense of failure. Secondly, and more importantly, they did not have the educational opportunities that were open to grammar school students. In general, they did not have the opportunity to study for A-levels and to go to university unless, by chance, they opted out of the system. That makes no sense for individuals but, more importantly, it makes no sense for the economy of this country. If we are to compete in the global economy that we see before us, we must raise the standard of education of every person in this country to the highest possible level both

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for their personal fulfilment and for our economic fulfilment. That is why we are prejudiced against selection at age 11.
Lord Carlisle of Bucklow: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, it must be the turn of the Liberal Democrats.
Baroness Sharp of Guildford: My Lords, the Minister will be aware of the research work of Professor David Jesson. That work has indicated that, where children feel that their school is special in some sense, they perform better. That helps to support the noble Baroness's contention that specialist schools have some advantage. Nevertheless, is she also aware of Professor Jesson's work which shows that, the greater the variety of schools in a particular neighbourhood, the greater the social segregation of those schools? Therefore, why are the Government persisting in creating such a diversity of provision with advanced specialist schools, beacon schools and city academies in such neighbourhoods, when that will only create greater social segregation?
Baroness Ashton of Upholland: My Lords, Professor Jesson's work is an important contribution to the debate. I pay tribute to all the work that he has done over many years. In developing a system which thus far has created success for 50 per cent of our young people at the age of 16 or thereabouts in gaining five grades A to C at GCSE, we still have a situation where 50 per cent of our children do not attain to a level that we would like to see. Therefore, in considering what to do next, it is right and proper that we ask how we can make schools develop further. As head teachers have said to me when I have discussed this matter with them at secondary level, this is an opportunity for schools to move forward, to create specialisms and to label themselves not only as regards their similarities in offering excellence across the spectrum of ability but also as regards developing their differences and using those to help every young person in our school system.
Lord Carlisle of Bucklow: My Lords, does not the recent speech by the Prime Minister and the apparent change of attitude by the Government show that, with hindsight, they now recognise the grave damage which their assault on grammar schools and the removal of the assisted places scheme have done over the years? Does she accept that the victims of those policies were the bright children from poorer backgrounds who missed the opportunities available to them?
Baroness Ashton of Upholland: My Lords, I believe it is probably the case that many bright children from poorer backgrounds did not attain well because, on the basis of one test at age 11, it was decided that they could not attain any further. As the noble Lord will be aware, I rarely make any kind of party-political point, but I understand that more grammar schools were abolished under the Conservative government than was the case under the Labour Government.
Lord Hardy of Wath: My Lords, will my noble friend accept that, within the variety of schools that have been, or may be, established, none will carry the label "sink schools"—a label applied to some not very long ago?
Baroness Ashton of Upholland: Indeed, my Lords. I believe that all noble Lords across the House—it is always my intention to unite the House and not divide it—will accept that we must move forward and ensure that every child who goes to a school receives the best possible education. We must also recognise that children's development is differential: they grow up and mature at different rates. We must ensure that our system is adaptable enough to give them the best possible opportunity at every stage of their lives.
Lord Pilkington of Oxenford: My Lords, have the Minister's officials given thought to the European experience, where differentiation of schools exists? That seems to suit people. Has she noticed that plumbers in Germany and Denmark put their qualifications on the side of their lorries? Vocational education is respected there. The comprehensive system has not respected vocational education and the Minister should give attention to that.
Baroness Ashton of Upholland: My Lords, I am not sure that I would consider that the grammar school system gave attention to vocational education. However, I agree with the noble Lord that vocational education is very important. That is why we introduced vocational GCSEs. It is also why, as I have said previously in your Lordships' House, it is important that we ensure that people who choose a vocational route—as I have said before, I include doctors in that—feel that they are pursuing a route as worthy and important as any other.

Urban Foxes
3.16 p.m.
Lord Newby Lord Newby asked Her Majesty's Government:
What advice they will give to people living in urban areas whose gardens are overrun by foxes.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the Government recognise that urban foxes can present problems for people with gardens. Responsibility for fox control rests with property owners and occupiers, who may, of course, engage pest-control contractors to undertake the work. DEFRA's leaflet, Urban Foxes, provides advice to householders. It concentrates on preventing and reducing problems by, for example, housing pets securely, storing rubbish properly, the use of repellents and physical exclusion. As a last resort, foxes may legally be trapped in humane cages and humanely dispatched.
Lord Newby: My Lords, does the Minister accept that the current situation borders on the farcical? Foxes are being trapped in north London and released in south London. The DEFRA advice to which the noble Lord referred encompasses the building of electrified fences and detailed Boy's Own-type instructions for building elaborate cages. DEFRA has an ongoing dispute with the RSPCA about whether foxes should be trapped and released in the wild. Will the Government now sort out this muddle by issuing clear guidelines to local authorities in order to provide effective management of foxes in areas where local residents demand it?
Lord Whitty: My Lords, prime responsibility for the control of all vermin, both rural and urban, rests with the occupier, householder or landowner. That is the case in relation to urban gardens and foxes. As to whether foxes are being transported against their will from north to south London, I am not sure. I believe that if I were a fox in north London, the leafy plains and delicious food in Dulwich would probably attract me without the need for me to be put into a cage.
Earl Peel: My Lords, is the noble Lord aware that foxes are being transported—
Lord Hoyle: My Lords, I hope that my noble friend does not call in the hunt as that would cause the damage, upset and tremendous distress that is caused in rural areas when 50 hounds and their followers invade rural gardens in pursuit of their quarry.
Lord Whitty: My Lords, when leaving my office late the other night I observed an urban fox in Smith Square outside the headquarters of DEFRA. I do not know whether it thought it was safe there. It struck me that the burghers of Westminster and Kensington probably would not favour the hunt coming across their pleasant gardens in order to destroy such vermin. The problem needs to be taken seriously, but is a question of pest control rather than legislation or government action.
Earl Peel: My Lords, is the Minister aware that foxes are being transported from urban areas to rural areas in considerable quantities? I believe that that is an illegal activity and would ask the Minister to condemn it here and now to your Lordships' House. It is not only unfair to the urban fox finding itself in circumstances in which it cannot cope; it is also unfair to those managers of the countryside who have to deal with it and who, I can assure the House, have enough problems already.
Lord Whitty: My Lords, it is not our advice that foxes should be transported from one area to another, whether from urban to rural areas or from north to south London. That is not a sensible way of trying to control foxes. As regards whether the problem is greater in rural or urban areas, statistics do not bear
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that out. However, the general indications are that urban fox populations are growing faster than rural fox populations, principally because they know where they can have access to food. It is important that we recognise that we are now dealing with foxes which are used to different kinds of habitat.
Lord Wright of Richmond: My Lords, is the Minister aware that, unwisely, my wife left a pair of shoes outside our house last night? An urban fox in SW14, possibly released from north London, decided to chew them and they are now totally destroyed. That may suggest one word of advice for people living in urban areas.
Lord Whitty: My Lords, I hesitate to ask why the noble Lord's wife left her shoes outside in the first place. That seems to me most unwise in south London.
Lord Mackie of Benshie: My Lords, is there any reason why a householder should not shoot foxes in his garden?
Lord Whitty: My Lords, I suspect that depends on whether one has a gun licence and on whether one can do so without causing danger or discomfort or seriously alarming one's neighbours. I referred to foxes being humanely dispatched. Normally that would mean shooting but carried out away from a suburban garden and not near other people.
Lord Renton: My Lords, will the Government bear in mind that if hunting is abolished, the number of foxes in the countryside and in most urban areas will increase and that foxes will then suffer terribly because other methods of killing them will cause more cruelty than hunting?
Lord Whitty: My Lords, so far both I and other noble Lords have not dealt more generally with the issue of the regulation or banning of hunting. The evidence in that respect indicates that whatever one thinks of hunting, it results in the killing of only a small proportion of rural foxes.
Baroness Byford: My Lords, does the Minister accept—he has done so already—that the number of urban foxes is increasing rapidly? My noble friend is right; they are being taken into the countryside and that has become a welfare problem because they cannot survive there. Does not the Minister think it is about time that his department instigated a method of controlling foxes in urban areas rather than leaving that to property owners, who cannot chase foxes round their gardens?
Lord Whitty: My Lords, that is a government responsibility too far. We can give advice, support and information. However, I do not believe that a vigilante squad of DEFRA officials trying to find urban foxes would meet with the noble Baroness's approval.

Miners: Vibration White Finger Scheme
3.24 p.m.
Lord Lofthouse of Pontefract Lord Lofthouse of Pontefract asked Her Majesty's Government:
Whether the closing date for miners' widows to make claims for compensation under the vibration white finger scheme is imminent, and what steps they are taking to publicise this.
Lord McIntosh of Haringey: My Lords, on behalf of the Department of Trade and Industry, perhaps I may say what a pleasure it is to see the noble Baroness, Lady Miller of Hendon, back in her place.
In March this year the DTI announced that in line with the agreement signed between the department and solicitors acting for the claimants, we proposed to close the vibration white finger scheme on 31st October 2002. We have carried out two press campaigns during the past seven months with advertisements in both the national and regional press. The date has also been advertised in the DTI newsletter entitled Compensation for Miners, and on the department's coal health website. In addition, the cut-off date has been advertised on a regular basis by solicitors' firms in local papers.
Lord Lofthouse of Pontefract: My Lords, I thank my noble friend for that Answer. However, is it not a matter of great concern that with days to go before the cut-off date, the Department of Trade and Industry has still not reached agreement on the posthumous VWF claims protocol? Further, is it not correct that the DTI has failed to advise widows of their eligibility to claim or that they must comply with the deadline? I acknowledge the points made by my noble friend regarding advertisements. However, such failure could mean history repeating itself. I refer to the situation regarding compensation in respect of chest diseases when such applications spiralled.
Does not the Minister think that the DTI could find itself in a position in which many miners' widows are denied their rightful compensation, as were the canteen ladies in the coal industry who missed out on thousands of pounds through no fault of their own?
Lord McIntosh of Haringey: My Lords, I did not fully understand the first part of my noble friend's Question. However, I shall read Hansard and, if necessary, write to him. As regards widows, there has been a process for dealing with posthumous claimants with medical evidence ever since the inception of the claims handling arrangements three-and-a-half years ago. The difficulty has been with such claims in which there is no medical evidence.
We have always made clear that we would accept such claims, and for over a year there has been a form for registering them. We have procedures which have been agreed with claimants' solicitors. I do not think that that has been a problem in the submission of claims. Around 10,000 such claims have been received.
Lord Ezra: My Lords, on 13th September Mr Brian Wilson, the Minister for energy, announced that
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150,000 claims under the VWF scheme had been received. Can the Minister indicate how long it will take for such claims to be processed and settled?
Lord McIntosh of Haringey: My Lords, the majority of such claims have been processed and settled. At present the number of claimants is falling off. Where an assessment centre can handle, say, five claimants a day for testing and medical assessment, many now handle a much smaller number. That is not economical, and is not a good use of doctors, and medical technicians. That is why it is necessary, regrettably, to bring the scheme to a close, as was always planned.
Lord Ashley of Stoke: My Lords, in the light of the remarks by my noble friend Lord Lofthouse, if there is the slightest possibility of a widow being denied a legitimate claim, why cannot we have a more flexible cut-off point than we have at present?
Lord McIntosh of Haringey: My Lords, I have explained why it would be a poor use of resources to carry on the scheme indefinitely. However, that does not mean that there is a denial of claims. This refers only to claims under the scheme. It is still possible for claims to proceed through the courts under common law provisions and there are solicitors available to see that that happens.

Nationality, Immigration and Asylum Bill
3.29 p.m.
Report of Parts 3, 5 and 8 received.
Earl Russell Earl Russell moved Amendment No. 1:
Before Clause 42, insert the following new clause—
"ASYLUM SEEKER: RESTRICTIONS ON EMPLOYMENT
(1) The following shall be inserted after section 95(11) of the Immigration and Asylum Act 1999 (c. 33) (persons for whom support may be provided)—
"(11A) A condition imposed under subsection (9) may not include any prohibition or restriction upon employment, paid or unpaid.
(11B) Nothing in subsection (11A) shall prohibit income derived from paid employment from being taken into account in assessing whether a person is destitute under sections 95 and 98 (temporary support) of this Act or sections 16 and 23 of the Nationality, Immigration and Asylum Act 2002."
(2) The following shall be inserted after paragraph 21(2E) of Schedule 2 to the Immigration Act 1971 (c. 77) (temporary admission or release from detention)—
"(2F) Where a person has been an asylum-seeker within the meaning of section 94 (interpretation of Part VI) of the Immigration and Asylum Act 1999 for more than six months, no restriction as to employment shall be made under this paragraph and any restrictions on employment already made in respect of that person shall be deemed to be lifted.""
The noble Earl said: My Lords, when we read today's papers we read about the resignation of a Minister, perhaps more conscientious than some. The two things which seem to have brought her to grief are

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the haste in the introduction of AS-levels, and a rash pledge about the achievement of targets. Both those decisions were taken on the watch of Mr David Blunkett, now Home Secretary. The habit of legislating in haste is one from which Mr Blunkett does not seem to have recovered, as Amendment No. 6 in today's Marshalled List illustrates.
Amendment No. 1 concerns the withdrawal of the right to work. That was introduced not by legislation but by administrative fiat, as the Home Secretary perfectly properly could but should not therefore necessarily have done last July. The purpose of the amendment would be not to give an absolute right to work, but to restore the status quo ante-Blunkett—the right to work after six months.
In introducing this measure I believe that the Home Secretary has shot himself in the foot. First, he has the combination of the withdrawal of the right to work with a draconian series of measures entitling him to withdraw support. Those look to me suspiciously like the upper and the nether millstone.
Secondly, the Home Secretary talks continually about weakening the appeal of the extreme right. He does not seem to be very successful at it. The extreme right writes me a large number of letters, rather more about asylum than about gay rights. Over and over again the point that the extreme right makes is that asylum seekers are scroungers. Most of them do not know that for a long time they have not had the right to work for the first six months. I have succeeded with that point in reducing even a London taxi driver to silence. But I do not think that I can afford to campaign against the Home Secretary by taking every taxi in the British Isles.
So if asylum seekers continue to be unable to work after six months and continue to need to depend on whatever support the Home Secretary may graciously choose to give them, that point made by the extreme right can only have greater appeal than it does now. Furthermore, people tend to have an unreasonable desire to live. So if they have neither support nor the right to work, first they will fall for the temptation of illegal working. The report by the noble Lord, Lord Grabiner, on the black economy shows that there are plenty of people ready to offer that work.
This measure will be a shot in the arm for the sex industry; and I did not say a shot of what. I am not known in the House as a campaigner against pornography. But I am I think known as one who objects passionately to the use of economic power to put a woman in a position where she has no choice but to work in the sex industry if she wishes to feed herself and her children. That I regard as an abuse. In the process, the Home Secretary will deprive his right honourable friend the Chancellor of the Exchequer of income from tax and national insurance, of which he needs rather more than it seemed he was likely to do a year ago. I do not think that that is very clever.
Finally, I shall not enter into the questions raised by St Thomas Aquinas about whether it is a sin for the destitute to steal from the rich in order to support
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themselves. I have never made my mind up on that one. But I am aware that we have a Prime Minister who came into office with a pledge to be tough on the causes of crime. I think that the withdrawal of the right to work from asylum seekers is a breach of that pledge. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I address the first part of the amendment. I have some difficulty understanding why those dealing with applications for support would need to impose conditions relating to employment when offering support. Other immigration legislation already provides powers to impose conditions relating to freedom to take up employment. We do not believe that we need more.
However, I well expect that the central thrust of the amendment is the second part. The noble Earl, Lord Russell, signalled his interest and concern in this matter before the Summer Recess when we were in Committee but without the opportunity to debate the matter. The amendment attempts to reintroduce the former employment concession for asylum seekers. The House will not be surprised to hear that we do not support that.
When we withdrew the concession in July this year, it was made clear that there was a strong concern for the need to prevent abuses of the asylum process. There is a perceived belief that those who do not have a well-founded fear of persecution but wish to come here for economic reasons are claiming asylum because they believe that this will allow them to work here. While that was not the case, we must take steps to ensure that people do not make fraudulent applications for asylum.
The Government, as the House knows, have announced plans to address skill shortages in the UK. Equally, we have made it clear that these must be seen as separate from asylum. We cannot have a situation where people claim to be asylum seekers for the first six months and economic migrants afterwards.
We believe that the amendment as worded is unworkable. All asylum seekers are issued with an application registration card or standard acknowledgement letter and both those documents state categorically whether or not the asylum seeker has permission to work. Unless an entirely new document is issued to every asylum seeker, covered by this amendment, no self-respecting employer would offer them employment.
The regulations are issued in respect of Section 8 of the Immigration and Asylum Act 1996. They specify the documents that an employer can rely on to establish a defence against prosecution under Section 8. These include documents that show the person has permission to work here. Employers would not be able to establish a satisfactory defence against prosecution were they to employ asylum seekers whose documents did not confer permission to work.
However, I do not wish to respond merely on the technicality of the amendment but more on the substance. The substance is that we continue to work

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to speed up the process of initial decision making. That means that few people should be waiting longer than six months for an initial decision. Therefore, in short, we do not believe that there is the problem which the amendment seeks to address.
The ending of the employment concession—Clause 54—will not result in destitution for anyone who has children under 18, as the position of families is protected under Clause 54, so they will be able to obtain NASS support, as we have indicated previously. For those reasons, we do not believe that this amendment is necessary. Therefore, we invite the noble Earl, Lord Russell, to consider withdrawing it.
Earl Russell: My Lords, I simply fail to understand why the Minister thinks that every asylum seeker who is still here after six months must necessarily be fraudulent. I fail to hear anywhere in the Minister's remarks any attempt to make a distinction between asylum seekers who are fraudulent and asylum seekers who are not. I have never been able to see how that distinction can be made before claims have been heard.
Essentially the Minister's objection is that it would involve the Government in issuing a piece of paper. I thought that government were rather good at issuing pieces of paper. In fact, I thought that was one of the few things that they were good at. I find this a rather surprising objection. I accept the point that support shall remain available for children, but the Minister did not, I think, hear the debate yesterday on Amendment No. 109 of the Adoption and Children Bill. The question was raised of separating children from their families, which is, first contrary to the UN Convention on the Rights of the Child; secondly, contrary to the Children Act 1989; and, thirdly, is not good policy.
I do not see how that pledge to support the children but not the grown-ups can be implemented without breach of those perfectly serious conditions. Under the Bill, especially in conjunction with later amendments, on which I shall not now dwell, some people will receive no support and have no right to work. I draw the Minister's attention to the Labour Party manifesto for the most recent election, which contained the pledge to reduce rough sleeping on the streets. I cannot see how that is compatible with the withdrawal of the right to work from asylum seekers, of whom 61,000—I think it was at the last count—relied on social services in London. I cannot see how that can be done without putting people in a position where they have neither the right to work nor a right to support. How can the Minister deny that some people will be in that position?
When I was newish in the House and had been making a big fuss in the Chamber, I was once asked how I would rate the issue that I had been raising on a scale of outrage from one to 10.I said that I would rate it as eight on the scale. I received the reply, "What, not nine or 10?" I said that I reserved nine for things that I could barely imagine would be done and 10 for things that I used to believe would never happen in this country. Today, we have a crowded agenda. I rate this issue at nine on my scale of outrage, but today I must
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reserve Divisions for those that I rank at 10—the time of the House permits no less. So I beg leave to withdraw the amendment, but were the Minister to refuse me that leave, I should walk through the Lobby as fast as possible. I hope that he shall not refuse and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Asylum-seeker: form of support]:
Lord Dholakia Lord Dholakia moved Amendment No. 2:
Page 23, line 27, leave out paragraph (a).
The noble Lord said: My Lords, this matter was discussed at some length during recommitment last week. The purpose of Amendments Nos. 2 and 3, which have been tabled by us with the support of the noble Lord, Lord Judd, is to ameliorate the Government's proposal to withdraw subsistence-only support. Amendment No. 2 would remove the Secretary of State's power to remove subsistence-only support from all asylum seekers in one fell swoop. Amendment No. 3 would oblige the Secretary of State to take into account personal circumstances of asylum seekers when deciding to withdraw subsistence-only support. Amendment No. 4 would ensure that those in receipt of subsistence-only support before the coming into force of the order would retain it. Thus, the Secretary of State could provide only that new cases were not to receive subsistence-only support.
My purpose in moving the amendment is to seek some broad assurances from the Government that they will not bring the provision into force to place people in National Asylum Support Service accommodation but that they intend to use it only when accommodation centres are up and running in which they can place people. Secondly, the Government must accept that families provide not only material but also practical and emotional support to asylum seekers and must respect the principle of family unity. The third assurance that we seek is that the Government will respect the United Nations Convention on the Rights of the Child in implementing the provision and will not separate children from carers.
We also want the Government, before Third Reading, if possible, to place in the Library details of the number of people—especially principal applicants and dependants—claiming subsistence-only support for the week ending 13th October 2002. That would give us an indication of what expenditure the Government will incur under the provision.
Among those who have expressed concern about the provision is the Greater London Assembly. The National Association of Citizens Advice Bureaux has recently produced a report entitled Distant Voices, referred to during the previous debate, which identifies serious and systematic concerns. It states that,
"more than 400 social policy evidence reports received by NACAB from CABx since 1 March 2002",
demonstrate,
"that the Government's stated perception of the current performance of NASS is far from reality".
I hope that the Government will not impose extra responsibilities on that body, the performance of which is questionable. I hope that the Minister can give the assurances for which I have asked. I beg to move.
3.45 p.m.
Lord Filkin: My Lords, the power in Clause 42 is necessary to ensure that we have the flexibility in future to move to a more managed asylum policy and so that we can maintain better contact with those who are eligible for support during the asylum process. We have already made clear that, as and when accommodation centres replace the present system of dispersed accommodation, we intend to offer support only in those accommodation centres. Under current arrangements, asylum seekers eligible for support can stay with friends or relatives and claim support to cover essential living needs. We have no control over where they live, which makes it difficult to maintain contact.
Large numbers of those who take up cash-only support remain in London and the South East. At the end of June 2002, more than 23,000 of the more than 33,000 asylum seekers taking subsistence-only support were living in London. That clearly causes considerable problems and does nothing to alleviate the pressure on services in those areas, which the introduction of the dispersal scheme was intended to do.
It will be apparent to the House that we certainly do not have sufficient accommodation centres up and running to make it likely that we shall want to trigger those powers in the near future, but it is clearly our hope and intent to move to that position, so the powers are necessary. However, we have already said that in reaching decisions on when and how to exercise the power to end subsistence-only support, the Government will take account of all the relevant factors, including the points raised by noble Lords and our obligations under the European Convention on Human Rights. I reiterate that at present we have made no decisions and there is no timetable—for the obvious reason that anything like the required number of accommodation centres do not exist.
We should also remember that we have agreed that any order made under the clause will be subject to the affirmative resolution procedure, which means that we shall set out how we intend to exercise the power and there will be ample opportunity for each House to discuss it and its implementation. Although no decision has been taken about the content of any draft order or orders on whether implementation will be on a phased basis, the Government require the flexibility to be able to abolish cash-only support in all circumstances—even when it has already been provided. We need that flexibility by order, subject to affirmative resolution, should we so decide.
Turning to some specific questions asked by the noble Lord, Lord Dholakia, we clearly respect the principle of family unity. If by that he means, "Would it be right to separate children from their prime
1442
carers?", the answer is a categoric no. If he means, "Would an asylum seeker always be able to live near an extended family?", the answer is no. Similarly, we have previously made our position clear on the United Nations Convention on the Rights of the Child in legislation.
In summary, I emphasise that we believe the power to be necessary for flexibility. It would not be triggered without affirmative resolution. It may not be used, because we may apply it on a phased basis, but we believe it is right and proper that it exist.
Earl Russell: My Lords, before the Minister sits down, does he accept that the clause as drafted is entirely inflexible and allows the Government to remove support from everyone concerned all at once? Before he takes refuge behind the affirmative resolution procedure, does he accept that it is entirely proper for the House to vote on an affirmative resolution?
Lord Filkin: My Lords, I shall not be drawn into changes to the working practices of the House. That is clearly a subject on which there has been considerable debate and differing opinions. The noble Earl knows that better than most.
I am struggling to remember the noble Earl's first point. Would he please remind me of it?
Earl Russell: My Lords, the clause allows the Home Secretary to withdraw support from all people not in accommodation at once and without condition.
Lord Filkin: My Lords, it does, but the Secretary of State's hands are not tied. He can choose whether to use the power or to bring it in incrementally, using other powers in the Bill. He is not forced to use the power, if he thinks it inappropriate to do so.
Lord Dholakia: My Lords, I am grateful to the Minister. I identified three issues in the amendment. One is that pressure on services will increase, if people live with families with no support for essential living needs. Somebody will have to identify those needs, and that will fall to the services.
The second point is that the proposed measure is particularly punitive. Many asylum seekers will be elderly people, single mothers or people suffering from mental illness, whose friends or family have realised that they would be incapable of surviving on their own, if dispersed to accommodation elsewhere, and have taken them into their own home. I refer again to the NACAB report, which shows that, in many cases, vulnerable individuals were left for weeks—even months—without the means to buy food and other essential items.
We tried to get some assurances on the matter in Committee: we did not get them, nor are we satisfied with the Minister's reply at this stage. In the circumstances, I shall seek the opinion of the House.
3.51 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 122.

Division No. 1

CONTENTS

Alderdice, L.

McNally, L.

Alton of Liverpool, L.

Maddock, B.

Avebury, L.

Mar and Kellie, E. [Teller]

Barker, B.

Masham of Ilton, B.

Best, L.

Methuen, L.

Bradshaw, L.

Naseby, L.

Chan, L.

Newby, L.

Clement-Jones, L.

Oakeshott of Seagrove Bay, L.

Dahrendorf, L.

Oxford, Bp.

Dholakia, L.

Rawlinson of Ewell, L.

Ezra, L.

Razzall, L.

Finlay of Llandaff, B.

Redesdale, L.

Goodhart, L.

Rennard, L.

Gray of Contin, L.

Rodgers of Quarry Bank, L.

Greaves, L.

Roper, L.

Hamwee, B.

Russell, E.

Harris of Richmond, B. [Teller]

Sandberg, L.

Holme of Cheltenham, L.

Simon of Glaisdale, L.

Hylton, L.

Taverne, L.

Joffe, L.

Thomas of Walliswood, B.

Lester of Herne Hill, L.

Thomson of Monifieth, L.

Linklater of Butterstone, B.

Walmsley, B.

Livsey of Talgarth, L.

Wigoder, L.

Mackie of Benshie, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Donoughue, L.

Ahmed, L.

Dormand of Easington, L.

Allenby of Megiddo, V.

Dubs, L.

Alli, L.

Elder, L.

Amos, B.

Erroll, E.

Ampthill, L.

Evans of Parkside, L.

Andrews, B.

Evans of Temple Guiting, L.

Anelay of St Johns, B.

Falconer of Thoroton, L.

Archer of Sandwell, L.

Farrington of Ribbleton, B.

Ashton of Upholland, B.

Filkin, L.

Bach, L.

Fyfe of Fairfield, L.

Bassam of Brighton, L.

Gale, B.

Bernstein of Craigweil, L.

Gavron, L.

Blackstone, B.

Golding, B.

Borrie, L.

Goldsmith, L.

Boston of Faversham, L.

Gould of Potternewton, B.

Bragg, L.

Graham of Edmonton, L.

Brett, L.

Greengross, B.

Brightman, L.

Greenway, L.

Brooke of Alverthorpe, L.

Grenfell, L.

Brookman, L.

Grocott, L. [Teller]

Bruce of Donington, L.

Hardy of Wath, L.

Burlison, L.

Harrison, L.

Campbell-Savours, L.

Haskel, L.

Carter, L.

Hayman, B.

Christopher, L.

Hilton of Eggardon, B.

Clark of Windermere, L.

Hollis of Heigham, B.

Clinton-Davis, L.

Hoyle, L.

Cohen of Pimlico, B.

Hughes of Woodside, L.

Corbett of Castle Vale, L.

Hunt of Kings Heath, L.

Crawley, B.

Jay of Paddington, B.

David, B.

Jeger, B.

Davies of Coity, L.

Jordan, L.

Davies of Oldham, L.

King of West Bromwich, L.

Dean of Thornton-le-Fylde, B.

Kingsland, L.

Desai, L.

Laird, L.

1444

Layard, L.

Prys-Davies, L.

Lea of Crondall, L.

Ramsay of Cartvale, B.

Lipsey, L.

Randall of St. Budeaux, L.

Listowel, E.

Rendell of Babergh, B.

Macdonald of Tradeston, L.

Renton, L.

McIntosh of Haringey, L. [Teller]

Scotland of Asthal, B.

Sewel, L.

MacKenzie of Culkein, L.

Simon, V.

Mackenzie of Framwellgate, L.

Stone of Blackheath, L.

Massey of Darwen, B.

Strange, B.

Milner of Leeds, L.

Symons of Vernham Dean, B.

Mishcon, L.

Taylor of Blackburn, L.

Mitchell, L.

Temple-Morris, L.

Molyneaux of Killead, L.

Tenby, V.

Monson, L.

Thornton, B.

Morgan, L.

Turner of Camden, B.

Morgan of Huyton, B.

Weatherill, L.

Morris of Aberavon, L.

Whitaker, B.

Morris of Manchester, L.

Whitty, L.

Nicol, B.

Wilkins, B.

Parekh, L.

Williams of Elvel, L.

Patel of Blackburn, L.

Williams of Mostyn, L. (Lord Privy Seal)

Pitkeathley, B.

Plant of Highfield, L.

Williamson of Horton, L.

Ponsonby of Shulbrede, L.

Winston, L.

Powell of Bayswater, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.1 p.m.
[Amendments Nos. 3 and 4 not moved.]
Clause 43 [Destitute asylum-seeker]:
Earl Russell Earl Russell moved Amendment No. 5:
Page 25, leave out lines 16 and 17.
The noble Earl said: My Lords, the amendment would delete a provision that authorises the Secretary of State to declare a person not to be destitute, any evidence to the contrary notwithstanding.
This is our old friend the Humpty-Dumpty clause—"Destitution means whatever I say it means". It is not a power that I am particularly eager to allow anyone. There is something to be said for the previous definition of destitution, in Clause 96 of the Immigration and Asylum Act 1999—being unable to meet essential living needs, which is a strong phrase.
I hope to hear from the Minister how he expects people who are denied the means to meet their essential living needs to remain alive. If I do not hear an answer to that question, I will repeat something said by the noble Baroness, Lady Boothroyd, when she was the Speaker in another place. When a mobile phone went off during a debate, she exclaimed, "It should not have been brought into the Chamber in that condition". If the Government have no answer to my question, they should not have brought in Clause 43 as it stands.
Grouped Amendments Nos. 7 and 8 relate to clauses that allow compliance with a condition to be made a condition of support and bar local authorities from providing support for anyone who breaches any condition. No doubt some conditions and—I concede this before the Minister makes the point—sanctions will have to exist but we do not regard as acceptable the total withdrawal of support as a means of enforcing conditions. We do not believe that punishment should be inflicted in a civilised society.
In the case of the United Kingdom v. Ireland under Article 3 of the European Convention on Human Rights, degrading treatment was defined as,
"treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating or debasing the victim and possibly breaking his/her moral resistance".
But such treatment must attain the minimum threshold of severity, determined on a case-by-case basis. I do not understand how denying people their essential needs for living can fail to meet that condition. No doubt that question is one that government lawyers will have to answer in due course.
We regard the total denial of support as an entirely unacceptable punishment. We are opposed to the death penalty. We are opposed to not officiously striving to keep people alive. We are opposed to what the law describes as recklessness, as to whether or not people are able to remain alive. I beg to move.
Lord Campbell of Alloway: My Lords, I rise to support the amendment because it has many ramifications throughout the drafting of the Bill—some of which relate to the questions that I asked at col. 984 of the Official Report of 17th October. To put the matter in perspective, Amendment No. 5 only opens the key to the door.
Would assistance be available to all those who would otherwise be left destitute? I think that the Government's answer is no. Must there not be some casual connection between an act of omission of an improper nature and the fact of being left homeless and destitute? I think that the Government's answer is no. Ought not the burden of proof to rest with the Secretary of State in establishing whether conditions for withholding support are compatible with human rights—and that those conditions have been met if a person is to be left without adequate housing, food or clothing? The Government's answer is no.
As no appeal to an adjudicator is available to those persons who are adjudged ineligible for support, ought there not to be the power to provide some support pending the outcome of the application for a judicial review? Again, the Government's answer is no. Finally, it all turns. One condition turns and is related to another. Are adequate safeguards provided against violation of the human rights of children under the Convention on the Rights of the Child, the European Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights, which are expressly safeguarded by Section 6 of the Human Rights Act 1998? The Government's answer is no.
On those grounds, I support Amendment No. 5 in the perspective of that very unattractive scenario.
Lord Lester of Herne Hill: My Lords, I support the amendment and, like the noble Lord, Lord Campbell, I am a member of the Joint Select Committee on Human Rights, whose 23rd report was published on 22nd October in relation to the Bill. The particular passages dealing with the points made by the noble Lord, Lord Campbell, are set out in the report, which I am sure Ministers and their advisers have read.
1446
The Government's position so far as concerns clarification of the Human Rights Act is that when new clauses are introduced, as they have been with the Bill, the Explanatory Notes originally published with the Bill are not at that stage updated so as to state the Government's position on why they consider the new clauses to be compatible with human rights. There is no obligation on Ministers to do that, although they could if they wished to do so.
The Explanatory Notes that have been provided on these clauses do not reveal the Government's position on the human rights implications—nor, as I say, do they have to do so—but the Lord Chancellor, in answer to questions that I raised, assured the House that Ministers would remain under a duty during the passage of a Bill to be as forthcoming as they could be on why they considered a particular amendment to be compatible with human rights.
I have covered points that will be made later in the debate on other matters to which the Select Committee has drawn attention. I say that—not in relation to this clause, admittedly, but in relation to Clauses 54 and 55—because the Select Committee has drawn attention to our view that the Government have a positive obligation to deal with destitution, otherwise they will risk breaching Section 6 of the Human Rights Act and Articles 3 and 8 of the European Convention on Human Rights, as well as the International Covenant on Economic, Social and Cultural Rights.
In supporting the amendment, I ask the Minister to respond to those points in our report at this stage in order that the House may properly be informed and able to take a position on this amendment and later amendments dealing with clauses in relation to destitution. If not, I would ask that something be done before the amendments are passed. Otherwise, we, as legislators who have an obligation in law making to comply with the international human rights treaties by which the United Kingdom is bound, will be left wholly in the dark. We have given our legal advice in our report, and Professor David Feldman's advice is spelled out very clearly here and elsewhere. As the Explanatory Notes do not clarify this issue, I am sorry to say that the luckless Minister will need to do so in accordance with the undertakings given to the House.
This is not a sensible way of dealing with parliamentary business. It would have been better if the Explanatory Notes had dealt with the convention issues. But I do not press that point because there is no obligation for them to do so.
Lord Bassam of Brighton: My Lords, I accept that certain noble Lords feel some discomfort with what we are proposing and I can understand what lies behind and motivates this group of amendments. The issue of human rights raised by the noble Lord, Lord Lester, is worthy of further reflection, but we need to put the points he has raised in the context of what we are trying to achieve overall with this legislation—and, perhaps, in the context of earlier legislation. I shall work through those points because they are important.

1447
Amendment No. 5 relates to Clause 43, which amends various provisions of the Immigration and Asylum Act 1999. The intention is to ensure consistency with the definitions contained in Part 2 of the Bill. Subsection (6) amends Section 95(3) to (8) of the Immigration and Asylum Act 1999. These provisions allow the Secretary of State to determine who is to be regarded as destitute and therefore eligible to receive support.
As the noble Earl said, Amendment No. 5 would prevent the Secretary of State from specifying in regulations that a person is not to be treated as destitute for the purposes of providing support under Section 95 in specified circumstances. I hope that I can offer some reassurance and suggest to the noble Earl that there is nothing sinister in the paragraph. The provision reflects what is already the case—the noble Earl probably understands this—under Section 95(2) of the 1999 Act and the regulations which support it.
We do not believe that people eligible for support under one set of provisions should be able to benefit from additional support. As I understand it, that would be the net effect if the noble Earl's amendment was agreed to. The kinds of cases we are talking about here are those where an asylum seeker already qualifies for interim support from a local authority, or where a person is eligible for social security benefits. Also excluded are persons who have not made a claim for asylum.
In our view, it is sensible to spell these categories out in secondary legislation so that the position is clarified. The intention is merely to ensure that persons do not qualify for support under two or more different sets of provisions and, equally, where they have not made claims for asylum. I hope that that offers the noble Earl some reassurance.
4.15 p.m.
Lord Lester of Herne Hill: My Lords, can the Minister give an assurance that the Government recognise that they have a positive obligation to remedy the evils of destitution in order to comply with our treaty obligations under the European convention and the economic and social rights covenant?
Lord Bassam of Brighton: My Lords, clearly we must ensure that we are not in breach of Article 3 of the European Convention on Human Rights. But the noble Lord will probably accept that there is quite a high threshold to that. That has been accepted in earlier debates.
Turning to Amendments Nos. 7 and 8, experience has shown that it is necessary to have a more managed asylum process with tighter controls within that process. I believe that noble Lords understand the importance of that. Our proposal is simply part of a package of amendments aimed at ensuring that we achieve a tighter control. Asylum seekers who report as instructed will have absolutely nothing to fear from our proposal to link provision of support to compliance with a requirement to report.
1448
We have already provided additional funding to the Immigration Service to enable it to set up a number of reporting centres so that the process of reporting is easier. As a result, more asylum seekers will be required to report. Regular reporting enables the Immigration and Nationality Directorate to obtain information from the asylum seeker. But equally—and this is the positive side—it gives the asylum seeker regular face-to-face contact with officials who can give advice on the status of the asylum applicant's claim.
Lord Campbell of Alloway: My Lords, the noble Lord, Lord Lester of Herne Hill, asked a perfectly simple, sane question, which was: in organising the new controls, do the Government accept that they must be organised within the remit of the European Convention on Human Rights? Surely the only answer the Government Front Bench can give is yes. If it is no, where are we?
Lord Bassam of Brighton: My Lords, I thought that I had made it plain that that was our view. Yes, of course, we accept that we have to operate within the terms of the conventions.
To return to the points that I was making in regard to Amendments Nos. 7 and 8, failure to report without reasonable cause may be an indication that the person is not complying with the asylum process. Asylum support is provided only while an asylum claim is under consideration. It would be wholly unjustifiable to use public money to support those who are not prepared to comply with all aspects of the asylum process. The noble Earl invites us to set that on one side. We believe that responsibilities come with making an application for asylum.
Earl Russell: My Lords, I explicitly conceded that point before the Minister rose to reply. I merely said that this particular penalty is not appropriate.
Lord Bassam of Brighton: My Lords, at the end of the day, the noble Earl and the Government may well have a disagreement on this point. We believe that it is an essential part of ensuring that we can properly manage the process. As I said at the outset, while I understand the good-natured spirit and intention behind the noble Earl's proposal, we believe that this good management is an essential part of ensuring that we protect the rights of asylum seekers and that we have a system that is fair and reasonable for all who go through the process. We shall possibly have a disagreement about where the firmness of the line should be drawn, but we are quite clear as to where we believe it should be drawn. I invite the noble Earl to withdraw his amendment.
Earl Russell: My Lords, the Minister has not drawn attention to the fact that the obligation under the European Convention on Human Rights covers Article 8, dealing with respect for family life, as well as Article 3, dealing with inhuman and degrading treatment. It is a point to which he might pay attention before the Government find themselves in court.

1449
I know that this provision repeats one in the 1999 Act. If the Minister looks at the debates on that Act in Hansard, he will find that I made the same points then. I congratulate the Minister on his gift for understatement, in saying that there is "some discomfort" about the Bill on these Benches, and, I believe, elsewhere in the House. For a long time, I believed that the worst Bill that I should ever see before this House was Mr Michael Howard's asylum Bill in 1996.I regret to say that in 1999, and now, I have seen two which are in my opinion worse. I never thought to find myself saying that on liberal grounds I should welcome the return to office of Mr Michael Howard.
I appreciate the Minister's point about not being eligible for support under two different sets of provisions. Had he chosen to word the clause in that way, I should not have tabled this amendment and the time of the House would have been saved. But the wording of the clause gives the Government their beloved friend "flexibility". It allows the Secretary of State to declare a person not to be destitute in any circumstances which appear to him appropriate, absolutely without prescription. That is flexibility for the Minister; it is inflexibility for everyone else.
I am not in the least satisfied by the Minister's reply. However, I cannot divide the House every time that I am in a state of total dissatisfaction; otherwise, we should be here all night. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Section 43: supplemental: Scotland and Northern Ireland]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 6:
Page 26, line 41, after "shall" insert "apply"
The noble Lord said: My Lords, this is, I am happy to say, a technical amendment. Its aim is to correct an oversight that has resulted in the omission of the word "apply" in the amended Section 7(4) of the Mental Health (Scotland) Act 1984 that Clause 45(4) substitutes for the existing provision. Without this amendment, the first phrase of the amended provision would be meaningless—and, of course, we could never permit that in your Lordships' House. I beg to move.
On Question, amendment agreed to.
Lord Best Lord Best moved Amendment No. 6A:
After Clause 48, insert the following new clause—
"SUPPORT AND ASSISTANCE FOR THOSE GRANTED LEAVE TO REMAIN
The following shall be inserted after section 94(6) of the Immigration and Asylum Act 1999 (interpretation of Part VI)—
"(6A) If, on the determination of his claim for asylum, the asylum seeker is granted leave to enter or remain in the United Kingdom, he is to be treated (for the purposes of the provision of support and accommodation under this Part only) as continuing to be an asylum seeker—

(a) for a period of 60 days; or

(b) until he secures adequate accommodation and support, whichever is the sooner.""

The noble Lord said: My Lords, I am bringing back this amendment, which is grouped with Amendment No. 10A and the consequential amendment, Amendment No. 71A. I am honoured that the noble Earl, Lord Russell, has added his name to the amendments.
I tabled the amendments because I am convinced that they are essential if the Government's sensible policy for the dispersal of asylum seekers and the integration of refugees in new communities is to have any chance of success. Without such measures, it seems to me a near certainty that those asylum seekers who are given refugee status and are allowed to remain in this country will leave the areas to which they have been dispersed—mostly northern conurbations—and will go to places where they can be helped by communities who share their culture, language and ethnicity, which mostly means going to London and to other areas where there is a high demand for housing and where the arrival of more people in need of accommodation will exacerbate immense strains.
The position is this. With the good news for an asylum-seeking household that they can settle in this country comes a 28-day notice of eviction from the accommodation provided for them through the National Asylum Support Service (NASS). The contractor-landlord is often not notified until some days or weeks thereafter, although many refugees are ignorant of their position until the landlord has been in touch. With the clock ticking before they must go, the refugee household may be facing the task of finding a new home without the benefit of any clear advice on their options and with the barrier of a lack of English language compounding a lack of understanding of the processes. In the time remaining, the household must locate alternative accommodation, negotiate with a new landlord, organise a job to pay the rent or get through the minefield of housing benefit to secure rent payment through the local authority.
As if navigating past all these obstacles in the remaining available days were not enough, there is the currently insuperable problem of the national insurance number—or NINO. This is issued by the Department for Work and Pensions, not by the Home Office. On it depends the entitlement to benefits, including the notorious housing benefit which the Government have rightly pledged themselves to reform, but also the possibility of legally obtaining a job.
At present, the national insurance number almost never arrives within the 28-day period. It often takes two months to reach the refugee household. Inevitably, the refugee household, without the wherewithal to obtain an alternative home, leave their NASS-provided accommodation with nowhere to go. Many try to move in—against the rules—with others nearby whose case is not yet settled. Occasionally, NASS landlords—again, against the rules—will generously let them occupy, rent-free, premises which they have empty. But for many refugees, the only way of finding somewhere safe is to move to their own communities in London or in other areas of high pressure. Less scrupulous landlords will pay the fare to

1451
be rid of the household without further hassle. So the dispersal policy collapses, as refugee households move away.
These amendments seek to increase dramatically the chances of dispersal working and of bewildered new long-term residents in this country settling and integrating into the areas to which they have been sent. The amendments would give them 60 days, not 28 days, and provide for advice via the local authority—no doubt through a refugee community organisation or other body—in their own language to help the new refugees to find a home. These changes will not in themselves provide the accommodation that is needed. However, housing is available in the areas chosen for dispersal, and the amendments provide the opportunity to match that supply to these needs.
I have met the relevant senior officer from the Home Office, and I know about the hard work to try to speed up the bureaucratic processes. In particular, efforts are being made to get the Department for Work and Pensions to issue national insurance numbers more speedily. But, my assessment is that it will be many months—if it ever happens—before refugees will have a full 28 days to solve their housing problems. Even if the full period is available to them, their dependency on others in getting through the hoops of housing benefit claims, negotiations with landlords and others means that the 28-day turn around will remain impossibly short.
Although paying for housing for up to one extra month would cost the Home Office more than paying for just one month, these amendments should reduce the overall cost to the taxpayer. It is much more cost-effective to continue to house people and to provide services for them in low-value areas than in the most expensive parts of the country, where services are already overloaded. To save much human misery, to save the Government's admirable dispersal policy and even to save some money, I commend these two amendments and the consequential one to reimburse local authorities for ensuring that the necessary advice is available.
4.30 p.m.
Earl Russell: My Lords, I congratulate the noble Lord, Lord Best, on tabling these two very necessary amendments. He referred to the need for a review of housing benefit, which was announced in this House by the noble Baroness, Lady Hollis of Heigham, last week. The run-on provision that the amendment introduces mirrors with uncanny precision what the noble Baroness offered the House in her Statement. It represents good thinking in both cases. This turn-around period, when someone stops claiming one form of support and becomes eligible for another, is always tricky.
I also wish to confirm strongly the difficulty of obtaining a national insurance number. Governments of all political complexions are rather less aware of the problem, but that does not mean that it is less true. My honourable friend Mr David Rendel, when he was my party's social security spokesman, constantly received
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assurances from various Ministers that there was absolutely no difficulty in getting national insurance numbers. However, they did not know that Mr Rendel's chief researcher had had her purse stolen with her national insurance card in it and that it had taken her no less than six months to recover a new one. I regret to say that that is not a unique case, and it explains why my honourable friend Mr Rendel was far from being as reassured as many Ministers hoped he would be.
As the noble Lord, Lord Best, said, these provisions are vital to people's chance of gaining employment, which is vital to their chance of getting accommodation without relying on asylum seekers' support. Mr Kenneth Clarke, when Chancellor of the Exchequer, was first to appreciate that such a run-on provision was needed. The provision that he introduced was a very good idea, but it had one or two small wrinkles in the detail, which have been ironed out by this Government. If the noble Lord, Lord Best, can persuade the Government to iron out those same wrinkles for asylum seekers, he will have done us all a service, and, incidentally, he will bring people into employment much sooner, bringing the Chancellor of the Exchequer revenue that I am sure he will find very welcome. Should the noble Lord feel the need to take the amendment to the Lobbies, we will support him with alacrity.
Lord Judd: My Lords, I hope that my noble friend will take seriously this commendable amendment. I shall make two points about why the amendments are important. First, whether or not we like it, and whether or not we support it, we all understand that the Government are at pains to make arrangements for people who are temporarily here, while seeking asylum or whatever, that will not induce unnecessary numbers of people to feel that living here is a good prospect: or to wish to come here. Once people have been through the process and have been granted leave to stay, that argument—about which some of us may have reservations in any case—has no application whatever. The task is then to enable these people to make a success of staying and to become positive citizens. Therefore, even if apparently an extra bill will be attached to doing this at first, it will be an investment in future success. Failure to do that may result in all kinds of additional expenditure for society because of the failure to make a success of the transitional phase. On economic grounds alone, therefore, it is crucial.
I shall make one further analogy to underline the point. As I said in the House before, I have the privilege of being president of the YMCA in England. We do quite a lot of work with young offenders. The issues addressed by the noble Lord, Lord Best, in these amendments are absolutely central to the success of offenders' rehabilitation to become positive, useful citizens. If those issues apply in that context, how much more are they a relevant and important part of enabling people who are staying here to become useful, positive and successful members of society?
Lord Brooke of Sutton Mandeville: My Lords, I shall be exceptionally brief. As somebody who was engaged

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in constituency duties during the last Parliament, I can endorse entirely the admirable presentation of the facts of the case by the noble Lord, Lord Best. They are familiar to those of us who served as MPs during the last Parliament, and I endorse entirely the amendments.
Lord Hylton: My Lords, in the first part of the Committee stage, I asked the Government to pay particular attention to the amendments tabled by my noble friend Lord Best. He told us today that he had been in touch with senior officials in the Home Office. He has also carried out research in the dispersal areas and met all the relevant people there.
I emphasise that this group of amendments relates to genuine, accepted refugees who have passed through the sieves and have no more hurdles to leap over. Amendment No. 10A is essential to the proper settlement in this country of refugees who are accepted. The third amendment in the group, Amendment No. 71A, places an obligation on the Government to support local authorities who incur extra expenditure. That will be particularly important in the case of local authorities that are suffering from cash limits. I ask your Lordships to accept that this group of amendments is essentially concerned with a humane approach to re-settlement and is entirely essential.
Baroness Carnegy of Lour: My Lords, I, too, congratulate the noble Lord, Lord Best, on the very clear way in which he explained his amendments. It might be better, however, if Amendment No. 10A said that housing authorities should secure that information on help is provided only if the information is requested. As currently drafted, the amendment seems to require housing authorities to track every asylum seeker granted permission to stay and to maintain that information. That would not be very reasonable. Perhaps the noble Lord would like to comment on that. Perhaps the Minister, who is an expert on the affairs of housing authorities, also would like to comment on it.
Baroness Anelay of St Johns: My Lords, I am grateful to the noble Lord, Lord Best, for raising this issue on Report, as he did so carefully in Committee. I am grateful also for his call last week. He has been doing some very careful work behind the scenes to ensure that noble Lords are aware of the work done during the summer to take the arguments further forward than we could achieve in Committee.
It is a matter of humanity to ensure that those granted leave to remain can assimilate into the communities to which they have been dispersed. It is also an important issue. The Government have already extended the period from 14 to 28 days, and I welcome that move. The noble Lord, Lord Best, argues that that is still not sufficient and that 60 days should be allowed because of the problems of a bureaucratic system, particularly in the processing of national insurance numbers. I am sure that all noble Lords will, as my
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noble friend Lord Brooke said, have had case histories presented to them showing that there is real difficulty in the allocation of NINOs.
When the issue was raised in Committee, I said that my concern about the duty which the noble Lord, Lord Best, seeks to impose on local authorities was really about whether we should include good practice in the Bill. I was worried about funding levels and about whether the money allocated by central government to local authorities should be ring fenced. After that debate, during the summer, I tried to elicit the LGA's response to my comments and to the debate. Sadly, despite three or four e-mails and a couple of telephone calls, I have failed to elicit a response from the LGA. I hope that the noble Lord, Lord Best, has had more luck. In the absence of any response, I can only assume that the LGA must be content with what the noble Lord has brought before us today.
It has to be a matter of good practice that information in their own language is given to those who are dispersed. In my own community, my council follows that good practice. I hope that other local authorities do the same. I shall certainly listen with great care to the Minister's reply.
Lord Avebury: My Lords, I should just like to ask one question before the Minister responds to this very important debate. The guidance recently issued by the Office of the Deputy Prime Minister on how local authorities should interpret their responsibility for homelessness strategies under the Homelessness Act refers particularly to people from the ethnic minorities in their area. I cannot recall whether that guidance contains any special provision for offering advice to asylum seekers which would supplement the provision in these amendments. I am by no means suggesting that the noble Lord, Lord Best, is not absolutely right to spell this out in Amendment No. 10A, but I wonder whether local authorities already have some element of this responsibility under the Homelessness Act. I should be grateful if the Minister could remind us of that.
4.45 p.m.
Lord Filkin: My Lords, I thank the noble Lord, Lord Best, and other noble Lords for returning to this important issue. I completely agree with the comments of my noble friend Lord Judd and other noble Lords that this is an issue about resettlement. If the decision has been made that someone qualifies to remain in the country, no one should be mealy-mouthed about it: that person deserves to be properly treated, respectfully welcomed, and integrated as efficiently as possible into society so that he can contribute to society as he thinks appropriate. There is no resiling or hesitation about that at all.
I would be foolish if I sought to deny that there are problems; the noble Lord, Lord Best, clearly made that point. The department, too, is clear that this is not a perfectly functioning system. If we did come to the view that the 28-day period is not appropriate, we could, as the House would expect, extend the period by secondary legislation. There therefore seems to be no

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good reason to include the prescribed period in primary legislation—indeed, to do so could make it more difficult later to amend the prescribed period should that be deemed necessary. Who knows, it may well happen.
I realise that there is concern, as has been argued, that the 28-day period is not sufficient. I have asked NASS officials to give urgent further consideration to what constitutes an appropriate period. We have had conflicting messages. There is a suggestion that some local authorities will not provide housing until the person is homeless or about to become so. There is also a belief that some asylum seekers do not take active steps to obtain alternative accommodation until they are about to become homeless. I do not know how true that is. In these cases, however, the allowed period would not matter. However, I do not want to build a case on that argumentation.
I believe that there needs to be a proper expiration among the relevant and interested parties as to how we get this right. However, I also believe that the debate is about more than simply whether the period should be 14 days, as it was, 28 days, as it is, or 60 days, as the noble Lord, Lord Best, proposes. The issue is about making various bits of government work effectively and trying to ensure that local authorities respond properly and positively as far as they can with the resources at their disposal.
I turn first to the issue of national insurance numbers. NASS has worked with the Department for Work and Pensions to improve the arrangements for enabling successful asylum seekers to transfer from central government support to mainstream benefits or to enter the labour market. The national insurance number is clearly crucial to that. I have asked my officials to ensure that the revised arrangements are being applied to best effect. If that is not happening, I have asked what more the Government can do to make it happen.
NASS is also working with colleagues from the DWP and Jobcentre Plus to provide information to successful asylum seekers about mainstream benefits and accessing mainstream services. Advice to asylum seekers from the DWP and Jobcentre Plus is as important as the provision of a national insurance number. People need help, guidance and support about how to access mainstream society.
On housing, the Homelessness Act 2002 introduces an amendment to Section 166 of the 1996 Act to require a local housing authority to secure that advice and information is available free of charge to persons in their district about the right to make an application for an allocation of housing accommodation. In addition, any necessary assistance and advice in making such an application must be available free of charge to persons in their district who are likely to have difficulty in doing so without assistance. Some of us who were involved in housing aid 30 or so years ago might think that the local provision of such advisory functions is a fundamental point. The 2002 Act, which comes into effect in January, puts that provision into
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effect. When that happens, existing statute will provide precisely the remedy which the noble Lord, Lord Best, rightly seeks.
The noble Lord, Lord Hylton, asked about financial compensation in regard to one aspect of the amendments. I am 99 per cent certain that an assessment has already been made of the financial implications of that additional burden on local authorities and that that has been incorporated into the grant settlement. I am fairly certain of that as I recollect discussions on it when I was working with my noble and learned friend Lord Falconer on the Homelessness Bill in another place. If I am in error about that, I shall come back and clarify the position. However, I am certain that there has been an adjustment to grant for that purpose.
I am not able to answer the question about the ODM's exact advice. I take the thrust of the point and I shall give the factual answer. If it does not cover the point, I shall take it into our wider considerations.
What I am saying, in short, is that some of these issues will already be addressed by existing legislation. Some of them are under active consideration by various parts of government. To ensure that these processes do not just drift on for ever without coming to a conclusion, I give a commitment to the House that within a three-month period—over the next three months—we shall consult the relevant organisations: the LGA, relevant local authorities and the relevant refugee and support organisations as to how best to improve the position. The matter concerns how local authorities help resettlement in their areas, how we get the DWP to work effectively on the issuing of NI numbers and how we ensure that practical advice is issued. That process is bound to identify some issues that require further action. My intention is that within three months we shall be able to make a statement about what we shall do to address those issues. If we need to change the 28-day period, we shall do so. If other things need to be done, I shall spell out in my written response to the noble Earl, Lord Russell, and the noble Lord, Lord Best, the actions that I think it is right and proper for us to take. We share the motivation behind the amendment; that is, that we should support in an efficient and fair way the integration of those who have been accepted for refuge into this country.
Lord Best: My Lords, I am grateful for the support of many noble Lords for the amendments that we are discussing. The noble Lord, Lord Hylton, made the point that we are talking only of genuine, accepted refugees who are here to stay. The noble Lord, Lord Judd, made the point—echoed by the Minister—that we must help those people in every way that we can to settle and to become successful citizens. I am grateful also to the noble Baroness, Lady Anelay, for her comments. She has direct experience resulting from her work at a citizens advice bureau of the kind of problems faced by people who do not have national insurance numbers. As far as I know, the LGA is happy with what is proposed.

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The Minister suggested a number of ways in which government can under existing powers be much more helpful than perhaps has been the case in the past. The 28-day period could be changed by secondary legislation. The Minister will give consideration to whether a longer period than 28 days is justified. I feel sure that he will come to the conclusion that it is justified because it is impossible at the moment to expect people to settle their affairs as speedily as that given the bureaucratic processes involved. He makes the point that local authorities are encouraged to provide information about benefits. From January advice will be available free. However, it needs to be in the language of the relevant refugee household. A booklet on housing benefit written solely in English is hopeless. This must constitute a pro-active giving of advice to people who are likely to be fairly isolated and often in a place where only a very small number of people speak their language.
I am glad that funding is likely to be available under existing provisions. In the light of those comments and the commitment to the consultation which the Minister kindly gave, it is appropriate for me to reflect further on the matter. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 [Conditions of support]:
[Amendments Nos. 7 and 8 not moved.]
Clause 50 [Choice of form of support]:
Lord Dholakia Lord Dholakia moved Amendment No. 9:
Page 29, line 12, at end insert "provided that—

(a) the offer that has been made has not been withdrawn, and

(b) the refusal would not render the person or any dependant of his destitute within the meaning of section 18 of this Act or section 95 of the Immigration and Asylum Act 1999 (c. 33) (persons for whom support may be provided)."

The noble Lord said: My Lords, I shall be brief. Amendment No. 9 goes to the very heart of the support mechanism that we discussed on a number of previous amendments. The purpose of Amendment No. 9 is to ensure that no one is left starving and homeless.
I seek assurances that the Secretary of State will always maintain the original offer of support, or an offer of the original type of support. The amendment is fairly modest. It is important to note that it would be a misuse of the provisions if the Secretary of State were to seek to use them to deprive people of all support. Earlier, I was pleased to hear the noble Lord, Lord Bassam, say that he understood our concern. As I say, this is a modest request. I hope that the Minister will accept the amendment. I beg to move.
Lord Judd: My Lords, I hope that my noble friend the Minister will give a reassuring response. I believe that it is still a principle of our society that no one living in the United Kingdom should be destitute, and
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that everyone who lives here should enjoy certain basic standards. The noble Lord, Lord Dholakia, seeks to ensure that no one falls between the arrangements that are specified. I therefore hope that my noble friend will give a reassuring response.
Lord Clinton-Davis: My Lords, I support the idea behind the amendment, as my noble friend Lord Judd has done. I cannot go along with the idea—I do not believe that my noble friend can either—that that situation should arise. I hope that my noble friend will give a positive response to the amendment. There is no point in labouring the matter further. As I say, I hope that my noble friend will give a positive response to the amendment.
Lord Filkin: My Lords, I hope so too, but events will show whether that is the case.
Clause 50 deals with offering support. In essence it says that asylum seekers may not choose how to be supported; the Secretary of State makes that choice. If the asylum seeker declines the Secretary of State's offer of support in, say, an accommodation centre, the Secretary of State may refuse to provide support elsewhere. Clause 50 does not deal with whether or not the person is eligible for support, nor does it deal with circumstances in which support may be withdrawn.
The situation which Clause 50 addresses is where an offer of support has been made and the asylum seeker declines to accept that offer for reasons of personal preference. Take the example of an asylum seeker provisionally housed in emergency accommodation, who is offered support in an accommodation centre. If he decides he would prefer dispersal accommodation and lodges a second application for Section 95 support, the Secretary of State may refuse that second application for support on the basis that an offer had already been made under another provision. However—I believe that this directly addresses the point raised by the noble Lord, Lord Dholakia—the initial offer of accommodation centre support would not have been withdrawn, it would continue to lie upon the table for the asylum seeker to take up. But if the asylum seeker, say, failed to travel to the accommodation centre, the offer of support could be withdrawn under Clause 25. At that point, the decision to withdraw support would attract a right of appeal under Section 103 of the Immigration and Asylum Act 1999, as amended by Clause 52 of the Bill.
Our view, therefore, is that Amendment No. 9 is unnecessary. I hope that the noble Lord will agree to withdraw it.
Lord Dholakia: My Lords, I am grateful for the Minister's assurance that the original offer of support will be kept open. In the light of what he said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Withholding and withdrawal of support]:
Earl Russell Earl Russell moved Amendment No. 10:
Page 30, line 34, at end insert—"
( ) Where—

(a) the withholding or withdrawal of support under paragraph 6 or paragraph 7 of Schedule 3 would render a person or any dependant of his destitute within the meaning of section 18 of this Act or section 95 of the Immigration and Asylum Act 1999 (c. 33) (persons for whom support may be provided); and

(b) the Secretary of State has the power under section 4 (accommodation for those temporarily admitted or released from detention) of that Act to provide, or arrange for the provision of facilities of, accommodation for that person;

the Secretary of State must exercise his powers under section 4 of that Act in respect of the person."
The noble Earl said: My Lords, this amendment deals with people who have reached the end of the ordinary stages of the process. It provides that the Secretary of State, while he may withhold support under Sections 95 and 96 of the 1999 Act, shall not withhold support under Section 4 of that Act, which I might describe as the "bargain basement" section of the 1999 Act. It deals with the,
"provision of, facilities for the accommodation of persons—

(a) temporarily admitted to the United Kingdom…

(b) released from detention…or

(c) released on bail from detention under any provision of the Immigration Acts".

This amendment is chiefly concerned with the rights of those who wish to lodge appeals for judicial review, or who wish to do so under the European Convention on Human Rights. Appeals in both respects have happened, and both kinds of actions have ultimately ended in success. It does not seem to us to be reasonable that a person who wishes to have recourse to the processes of law, to which he has every legal right, should be prevented from doing so by being left so penniless that he has no access to the courts because he does not even have the money in his pocket to cover the fare. That might be construed as a breach of Article 13 of the European Convention on Human Rights—the right to an effective remedy.
Amendments Nos. 75 and 76 have also been included in this grouping. They relate to Schedule 3, which lays down a whole series of actions that local authorities must not take; for example, they may not offer support to anyone who is unlawfully in the United Kingdom. However, thanks to all the various controls, carriers' liability, and so on, almost every genuine asylum seeker is, in a sense, illegally in the United Kingdom because he has had to enter under forged papers, or in concealed circumstances.
It occasionally escapes the Government's attention that such people are protected by Article 31(1) of the 1951 UN refugee convention, as was repeated in a thunderous judgment by Lord Justice Simon Brown only a few years ago. We do not want anyone in that situation to be prevented from having access to justice; nor do we want anyone to be prevented from having access to justice if he has a case under the European Convention on Human Rights and may be returned to
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a country where he will experience torture or inhuman or degrading treatment. In view of the arguments advanced about the Roma, that is all too serious a possibility.
The provisions under Schedule 3 will also involve local authorities if, every time they have to apply a social services power, they also have to consider a power under the National Assistance Act, a power under Section 17 of the Children Act, powers to provide help and workshops to those with disability, and the immigration status of those concerned. There will be all sorts of exceptions. There are people with ECHR (Article 3) claims, and there are people with claims as regards freedom of movement within the European Union. Indeed, if the programme of accession goes ahead, Slovak Roma will be protected under both those grounds. It is not fair to expect the average local authority to make such judgments, in addition to all the other burdens that it also has to carry.
Further, I do not believe that it is reasonable to construe an attempt to exercise a perfectly genuine legal right as an attempt to obstruct removal from the United Kingdom, as is the case under Schedule 3. If the court wishes to say that the action is frivolous, it has the right to do so; and, indeed, it may exercise that right. But if the Government say that that attempt to exercise a legal right is an attempt to obstruct removal they will be acting as judge and party in their own courts, which is contrary to the principles of natural justice and subject to judicial review.
Noble Lords on these Benches believe that the powers of justice must come above the convenience of the Home Office. I know that that is not a popular doctrine in every quarter, but it is one to which we very firmly adhere. I beg to move.
5 p.m.
Lord Judd: My Lords, the noble Earl, Lord Russell, has put the case both fully and well. I simply rise to say that the concerns he has expressed are not limited to any one quarter in this House. Many of us will listen with great attention to what my noble friend the Minister has to say in response.
Lord Lester of Herne Hill: My Lords, whenever I hear my noble friend Lord Russell speak, I often think to myself what a great barrister he would have made: he deals with law in a way that ordinary people, even I, can understand. I have one question for the Minister in respect of these amendments. My noble friend raised the issue about the right of access to courts, and the right to an effective remedy. Whatever his position may be on this amendment, is the Minister able to give an assurance that destitution and the consequences of government action will not be used in a way that interferes with the right of access to justice in the determination of civil rights and obligations, or in a way that frustrates the provision of an effective remedy for claims of breach of the European Convention on Human Rights or of the refugee convention?

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If the noble Lord is able to give those assurances to the House, my position with regard to this group of amendments would be materially affected. If not, it seems to me that the inclusion of such amendments in the Bill would constitute an important safety net.
Lord Hylton: My Lords, I support the intention behind this amendment. We all wish to see the absolute minimum number of people kept in detention. However, a very small drafting point has occurred to me. I believe that the amendment might be improved by leaving out the words "facilities of" in paragraph (b).
Lord Filkin: My Lords, as the House knows, these measures are about the issue of "benefit shopping", which we previously discussed. Such measures originated from a number of local authorities experiencing acute pressures regarding people who had refugee status, or nationality, in other countries coming to the United Kingdom and then claiming support from local authorities when other forms of support were not available.
Amendment No. 10 would apply to the withholding of support under paragraphs 6 or 7 of Schedule 3, which deal with the withholding of support from failed asylum seekers, or those unlawfully in the United Kingdom. Section 4 of the Immigration and Asylum Act 1999 deals with what is known as "hard case support", which is provided at the discretion of the Secretary of State. This amendment would force the Secretary of State to provide "hard case support" (where Section 4 allows him to) to a person where the withholding of support under paragraphs 6 or 7 would render him destitute.
Therefore, the amendment would go against the whole purpose of Schedule 3, which is not to allow support under any of the provisions of the 1999 Act, as detailed in paragraph 1(j) of Schedule 3. The reason here is that we are clear that local authority budgets must be preserved for those most in need. Indeed, local authorities made strong representation to government to be given the protection that these measures provide. Failed asylum seekers who can leave but refuse to do so and persons unlawfully in the UK should not be supported. As I recollect, we said in Committee that there would be an offer on the table of transport back to the country where they had legal right to remain—a legal right of residence. Accordingly, I cannot accept the amendment, which would be contrary to the whole ethos of the measures contained in Schedule 3.
Amendments Nos. 75 and 76 would have the effect of allowing the forms of support listed in paragraph 1 of Schedule 3 to continue to be provided to failed asylum seekers and persons unlawfully in the UK, if, for example, an individual commences judicial review proceedings following a decision to remove him. They would also allow support to continue if an individual claims that any ECHR right would be breached if he were to be removed until such time as any appeals or judicial reviews against any adverse decision have been concluded. Finally, they would allow support to
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continue if an individual makes a request for leave to remain outside the immigration rules, again, until such time as any appeals or judicial reviews against any adverse decision have been concluded.
Failed asylum seekers have had their asylum claims finally determined. If failed asylum seekers wish judicially to review the Secretary of State's decision, they should do so before, or immediately at, the time of removal directions being set. The measures in Schedule 3 apply to failed asylum seekers only once they have failed to co-operate with removal directions issued in respect of them. It is important to stress that a failed asylum seeker will already have had the opportunity to raise at their appeal hearing against the refusal of their asylum claim all reasons why they should not be removed from the UK, including all ECHR reasons. Indeed, the legislation requires them to do so. Therefore, it will only be in exceptional circumstances that further ECHR points, raised after an applicant's original asylum claim has been refused and any appeal dismissed, will constitute a fresh application and be recorded as such. We should not set up a system by which a person gains from delaying raising their reasons for seeking to stay in the UK. Rather, we seek to make it clear that all issues should be raised at the relevant point earlier in the process.
Asylum support is also not available to those who are failed asylum seekers refusing to co-operate with removal directions who allege that other ECHR articles—for example, the Article 8 right to respect for private and family life—may be breached by removal. Likewise, support is not available if a failed asylum seeker applies for leave to remain outside the immigration rules but not including Article 3 claims. That is because it has been established that such persons do not fear persecution or torture on their return and can leave the UK or be removed by the Immigration Service. So, if they are destitute they can leave the UK to alleviate their situation and go to the country in which they have a right of residence.
For those reasons, persons who are here unlawfully should not receive any form of support. If they are genuine asylum seekers they should claim asylum. Then, so long as they meet the new eligibility criteria, they will be supported by NASS. To grant support in those circumstances would act as a pull factor, attracting individuals to enter the UK or remain here unlawfully.
Paragraph 1 does not prevent the exercise of the power relating to the performance of a duty to the extent necessary to prevent a breach of a convention or Community treaty. For those reasons, the amendments attack the fundamentals of what we believe is necessary to protect local authorities from unreasonable expenditure and to encourage those who have rights of residence elsewhere to move to places in which they can live after they have exhausted all the proper appeal processes.
Earl Russell: My Lords, I am well aware of the burden placed on local authorities. Indeed, I have co-operated with the noble Baroness, Lady Gardner of Parkes, in raising that on many occasions. That

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pressure was placed on local authorities by the unreasonable action of government in withdrawing support from those who should have continued to enjoy an entitlement to it. That is why the judgment of Mr Justice Collins on the National Assistance Act 1948 became necessary. I am extremely disappointed that the Minister has continued to invoke claims of benefit shopping.
In Committee, I quoted to the Minister Eurostat figures that show that within the European Union our benefit levels are in the lower half of the EU range. I shall not quote those figures again. If applicants are attracted here by the belief that they will receive genuine benefits, that must prove that those applicants are mistaken. If they come here in large numbers they may do so for other reasons or because of a mistaken belief in the level of benefits.
I have previously asked the Minister and I ask again: what attempts are made to publicise, on the streets of Baghdad, Kabul, Freetown in Sierra Leone and other places from which asylum seekers regularly come, British benefit levels for asylum seekers? I do not believe that those attempts are very significant. The Minister cannot rely on that argument.
I am extremely sorry to hear an attempt to exercise legal rights being described as a refusal to comply with removal directions. Those removal directions have on occasion been opposed in error. The Minister may remember the case of Chahal, which went to Strasbourg. A very strong judgment indeed was given against this country. That was not an event that I enjoyed and I do not expect that the Home Office enjoys repeating its details. I remember another case of someone who, during the passage of the 1996 legislation, was returned to Belgium because he had passed through that country on the way here. That was done without regard to the fact that Belgium, in contempt of Article 31.1 of the refugee convention, refused to admit him to its process because he had entered the country illegally under false papers. He was simply passed on, on the pass-the-parcel principle, from Belgium straight back to Zaire, from where he had come. I do not regard that as a satisfactory situation and I am afraid that I cannot regard the Minister's reply as a satisfactory reply, either.
Before we return to these questions on Third Reading, I ask the Minister to read the Home Office's own research, which has been published since we completed the Bill's Committee stage. It shows that benefit levels are a negligible factor in attracting asylum seekers to this country. That fact, and the fact that people come here in spite of the lowness of our benefit levels, sustains the view that ignorance of benefit levels among asylum seekers is likely to be pretty high. I hope that we will not hear that argument again. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10A not moved.]
5.15 p.m.
Clause 54 [Late claim for asylum: refusal of support]:
Lord Goodhart Lord Goodhart moved Amendment No. 10B:
Page 31, line 1, leave out from "is" to "after" in line 2 and insert "satisfied that there was undue delay in making the claim"
The noble Lord said: My Lords, it is most unfortunate that major amendments to the Bill, which raise important issues of human rights, were published too late for the Joint Committee on Human Rights to consider and report on them before the Bill's Committee stage, which was held a week ago today. Since then, the JCHR has published a report, which contains a number of very serious criticisms of the Government's plans. I hope that they will act on and answer those criticisms, but I very much fear that they will not.
In moving Amendment No. 10B, I shall speak also to Amendments Nos. 11 and 12 and manuscript Amendment No. 12A. They all raise significant issues of human rights, which were touched on in the report of the JCHR. Amendments Nos. 10B and 12A seek to reverse the burden of proof about whether the claimant is excluded from the possibility of support under Clause 54 on the ground that,
"the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom".
That is a decision in practice: it is taken not by the Home Secretary personally but by a civil servant in the Home Office. The effect of that provision is that the burden of proof rests on the claimant. The purpose of the amendments is to reverse that burden of proof and make it rest with the Secretary of State.
The penalty that will be imposed on an asylum seeker who has been held not to have made the claim as soon as is reasonably practicable is very severe; it could be said to be out of proportion with the offence. There is no support even for the destitute. We have been told that that is the purpose of the Bill. That is relieved only by Clause 54(5), which requires compliance with convention rights. That means that one cannot allow an asylum seeker to starve to death.
Surely it is a matter of common humanity that, even if such a penalty is legitimate—I shall touch on that shortly—the burden of proof must rest on the Home Secretary. The benefit of doubt must be given to the claimant. I would assume, and I ask the Minister to confirm, that in this case the standard of proof will be the civil standard of proof; in other words, if the claimant can persuade the Home Office that, on the balance of probabilities, the claim was made in due time, then the Home Secretary will be satisfied. But it means that, even if it is as likely as not that the claim was made in due time but the evidence each way is equally balanced, then the Home Secretary, under the clause as it now stands, will not be satisfied. We believe that, if the penalty is imposed, it must be imposed only if the evidence shows positively that the application was made late. Indeed, we would say that, in view of the severity of the penalty, the test required should be proof beyond reasonable doubt.
Under paragraph 17 of its report, after referring to speeches explaining why there might be good reasons why applications were not made as soon as reasonably practicable after arrival, the Joint Committee went on to say:
"In our view, there is a need for the express terms of the legislation to reflect the understanding approach which Lord Filkin said would be taken to those who claim to have been the victims of persecution. Rather than place the burden on them to satisfy the Secretary of State that they claimed asylum as soon as reasonably practicable, it would be preferable to require the Secretary of State to establish that there had been undue delay in making a claim, having regard to the circumstances facing the applicants. We consider that clause 54 should be amended by providing that support would be withheld only if the Secretary of State could establish that there had been unreasonable and undue delay in the making of the claim for asylum in the circumstances of the claimant's case".
The report then goes on to say at paragraph 19 that,
"clause 54(1)(b) would place on every claimant the burden of satisfying the Secretary of State that the claim for asylum was made as soon as possible after the claimant had arrived in the United Kingdom. In effect, this creates a rebuttable presumption that people claiming asylum have not made their claim as soon as reasonably practicable, and that accordingly claimants are not entitled to be supported. There is no empirical basis for presuming this, particularly when it may result in a destitute asylum-seeker losing any entitlement to support. As this could lead to a violation of human rights in the circumstances outlined above, it would be more appropriate to place the burden on the Secretary of State to establish that conditions for withholding support, compatible with human rights standards, had been met".
I turn now to the question of whether the refusal of support is justifiable at all. The Joint Committee on Human Rights says that leaving the claimant destitute would probably be a breach of Article 3 of the European convention on the grounds that it amounted to inhuman and degrading treatment. Even if that were not so, a breach of the obligation would be a breach of the obligation under Article 11.1 of the International Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to adequate food, clothing and housing.
I recognise that the International Covenant on Economic, Social and Cultural Rights is not incorporated in United Kingdom law, but surely the Government should not deliberately contravene it. To say that one can and must leave an asylum seeker destitute so long as the treatment is not technically inhuman is, I believe, unworthy.
For procedural reasons, we cannot now vote to remove Clause 54 in toto from the Bill. However, we can, and I believe should, restrict it, and that is the purpose of Amendments Nos. 11 and 12. Those amendments would remove the prohibition on support for the destitute by restricting the operation of Clause 54 to the provision of accommodation under the 1999 Act or under Clause 16 of the present Bill. Support for the destitute under Sections 95 and 98 of the Immigration and Asylum Act 1999 would be preserved. Access to temporary support under Clause 23 of the Bill would also be preserved. I believe that the effect of Clause 54 is unacceptable and inhumane and
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that the Government should take note of, and act upon, the criticisms in the report of the Joint Committee. I beg to move.
Lord Lester of Herne Hill: My Lords, I am most grateful to my noble friend Lord Goodhart for having drafted this and other amendments to enable the recommendations of the Joint Committee on Human Rights to be raised before the House during this debate. I am also grateful to him for having so fully explained what is to be found in our latest report. I want to make one or two points for the benefit of the House.
The Joint Select Committee is composed of six Members of the other place and six noble Lords drawn from all sides of the political spectrum, including the Cross Benches. They have the benefit of an expert legal adviser. Unlike the Government, who are entitled not to reveal their legal advice, the Joint Select Committee does reveal in a transparent way its legal advice on human rights issues. The committee, under its chair, Jean Corston, MP, has a Labour majority, but I believe that we act beyond party and we have been unanimous. Our report draws attention to some extremely serious human rights issues.
I have already accepted that the Government have no obligation to explain in their Explanatory Notes what they think about the human rights implications of amendments that they have tabled. But the Minister has an obligation, accepted by the noble and learned Lord the Lord Chancellor, to inform the House as fully as he can of the Government's response to the human rights issues raised by the Joint Select Committee. Unless that is done, it means that the House is being asked to legislate in the dark. I know that the inadequacy of ministerial responses is a subject to which the noble Lord, Lord Campbell of Alloway, has frequently drawn attention in the past. On the Select Committee we have had to work under enormous pressure and at great speed to produce what I hope noble Lords will consider to be a rational and comprehensive report.
The Home Office legal advisers have no doubt given full advice to Ministers about the human rights implications. I am not asking for that legal advice to be disclosed, but, on behalf of the committee—those of us who are members of the committee and those who are not here—I should like to hear a reasoned response to the particular issues in our report to which my noble friend Lord Goodhart has drawn attention. I very much hope that we shall not be told that the Minister will write to us because, by then, it will be too late. We need to have a fully considered response today to the targeted report.
Lord Campbell of Alloway: My Lords, of course I support the amendment, but I particularly support the argument adduced by the noble Lord, Lord Goodhart. It was clear and, to my mind, wholly persuasive. And, as the noble Lord, Lord Lester of Herne Hill, pointed out, it was based on the rendering of a non-party-political committee—the JCHR. That committee has Professor David Feldman as a legal adviser. I believe

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that the whole House could pay tribute to him for his magnificent work, carried out at short notice, which formed the basis of our unanimous report.
As your Lordships know, I have sat on the committee for some time. But it is seldom that we have had a situation not only where we have had to report with such speed but where we have done so with total unanimity. In the past, the Minister and I have had our own private problems on the subject of human rights. Thanks to his help, they have always been satisfactorily resolved. However, now there is not time in which to resolve the problem, as has been pointed out with considerable clarity by the noble Lord, Lord Lester. This time around we cannot see the advice which has been given to the noble Lord, Lord Filkin. That is privileged and has always been conceded to be so, but at this stage we are entitled to a response which reflects that advice. That is all we ask.
As things stand, the conclusion of the report on page 49 is worth mentioning. It is only the part concerned with Clause 54, which, I agree, is unacceptable and, as it stands, inhumane. However, the committee, which is unanimous, states:
"We draw the following matters to the attention of each House on human rights grounds.
—There is a risk that leaving a person destitute would inevitably threaten a violation of rights under Articles 3 and/or 8…
—There is a risk that the power to support children without related adults might lead to the separation of members of a family, giving rise to a risk of a violation of Article 8…
—There is a danger that Clause 54, inserted in the Bill on re-commitment, would authorise a violation of the right to adequate housing, food and clothing under Article 11(1) of the ICESC",
to which I referred earlier. Finally:
"—There are weaknesses of safeguards for human rights in Clause 54, in view of:

(i) the burden being placed on the claimant to satisfy the Secretary of State that a claimant has claimed asylum as soon as reasonably practicable;

(ii) The lack of objectivity in the requirement that a person must claim asylum as soon as reasonably practicable in order to be entitled to support;

(iii) the lack of any appeal to an adjudicator against a decision denying support; and

(iv) the absence of any power to provide support pending an application for judicial review of the decision to deny support".

I mention that—I was about to say "in open court"—on the Floor of the House as it is on those sort of issues that I most respectfully seek a response from the Minister.
5.30 p.m.
The Lord Bishop of Oxford: My Lords, I rise briefly to support Amendment No. 10B tabled in the name of the noble Lord, Lord Goodhart. I am concerned as to whether the burden of proof should be with the claimant or the Secretary of State. I am not a lawyer, so I hope the House may forgive a simplistic analogy. I have been trying to reflect on this as the debate goes on.
If a person at school applies for permission to have a weekend at home and is late in applying for such permission, I can well understand that the burden of
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proof should be upon them to give a good reason why he or she was late because it is simply a question of an optional privilege. However, if a person is threatened with expulsion because of an alleged serious offence, it seems to me entirely right that the burden of proof should remain with the governing authorities of the school.
In this issue we are speaking of destitution. We are not speaking about bonus or privilege, but about something which is fundamental. Therefore, I support the amendment, which leaves the burden of proof with the Secretary of State.
Earl Russell: My Lords, at present a high proportion of successful applicants are applying in-country. During 2001, 46,160 people, or 65 percent of the total, applied for asylum in-country. There is no evidence to suggest that their applications were less successful than those who applied at the port of entry. There were 21,105 in-country applications granted asylum or exceptional leave to remain compared to 10,915 port applications. A further 17,475 in-country applications were granted asylum or ELR on appeal compared with 4,445 port applicants. It looks as if the applicants in country have a slightly better chance of success. Therefore, there is no reason to suppose that their applications are in any way inherently less meritorious.
Such applications may be made in perfectly good faith. The noble Lord, Lord Joffe, is in his place so I beg his pardon if this is not so. It was the noble Lord who said that he did not realise it was necessary on arriving in the country to claim asylum. I have mentioned before the case of ex parte B in 1996. B walked from Waterloo to Lunar House to claim asylum in the mistaken but entirely honest belief that the headquarters of the Immigration and Nationality Directorate were the proper place to claim asylum. That is an honest error, for which total deprivation of support is a grossly disproportionate error.
I am extremely grateful for the Minister's comments in Committee regarding torture. I have come to know him as a man who is just, generous and careful, and I respect him deeply for that. The difficulty is, first, as I have heard my noble friend Lady Williams of Crosby argue many times in this Chamber, it often takes a long time and great difficulty and danger to obtain evidence of torture from abroad. Secondly, once the evidence of torture is available, it often takes a long time for the lower reaches of the Home Office to believe it.
I remember a case of one of the Campsfield nine, about which I had an extremely long correspondence—triangular in conjunction with the firm of Christian Fisher—with the noble and learned Lord, Lord Williams of Mostyn. It took us many months, and I suspect the personal intervention of the noble and learned Lord, to convince the Home Office that in that case the evidence of torture was perfectly genuine and the asylum claim well founded.
If there is a total deprivation of support, what are such people to live on while they are trying to establish that they have been tortured or that if returned they

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face a serious risk of torture? There are risks here which have not been considered. Also, the Home Secretary—this is another case of him legislating in haste—has built another stage into the asylum application process. For as long as I can remember these debates, the Home Office has been asking for the process to be speeded up. However, now we have brought into the process the question of deciding whether the application was made as soon as was reasonably practicable. That is a technical question. It involves knowledge of conditions in a great many countries around the world, with which I do not believe NASS to be conspicuously well equipped.
It will not have escaped the Minister's attention that the performance of NASS has not received entire and universal applause. It will, I am sure, not have escaped his attention now that if we put into the asylum process another and complicated hurdle, it will all take a great deal longer than it does now. That is not what we want; it is not what the Home Office wants, and I do not believe it is what anyone wants, but that will be the effect of leaving the Bill unamended.
Lord Hylton: My Lords, the right reverend Prelate the Bishop of Oxford put the point concerning the burden of proof extremely well and clearly. I hope he will be pleased to know that what he is saying is confirmed by the Home Office's research study 243. That states:
"There was very little evidence that the sample respondents had a detailed knowledge of: UK immigration or asylum procedures; entitlements to benefits in the UK; or the availability of work in the UK".
That explains why many current and past applications have arrived late and why a high proportion has succeeded.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Goodhart, in moving the amendment made reference to the fact that the amendments seek to amend the new clause tabled last week by the Government at recommitment. He said that because of certain rules he was not able to strike that out. That of course is simply because the noble Lord tried last week and failed. So who can blame him for having a second go in a different way?
At this stage I repeat the clear commitment that I gave from these Benches last week that we support the objectives that the Government seek to achieve by the new clause. Last week I spoke about the importance I attach to the guidelines that the Government are committed to introduce under the clause. I covered those issues at cols. 982 to 984 on 17th October. I shall not repeat them. I was very grateful to the Minister for the care with which he answered my rather long list of questions. I have considered his answers since then, and I am completely satisfied on the points.
There is a significant change in that the Joint Committee has had an opportunity to report on these matters. We have a duty to thank it for acting so speedily on such a significant matter. My noble friend Lord Campbell of Alloway was right to point out that
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this is the opportunity for the Government to give a response on that matter. I shall listen carefully to what the Minister says, but I put on the record that we support the Government in the objective that they seek in the clause.
5.45 p.m.
Lord Filkin: My Lords, I remind the House why we think this measure is necessary. The noble Earl, Lord Russell, is right: there is a high level of in-country asylum claims; in other words, only about one-third of asylum claims are made at the port. That does not mean that those two-thirds who apply in-country are automatically to be seen as not genuine asylum seekers; neither does the reverse apply: that those two-thirds are genuine asylum seekers.
The issue is about trying to get more order into the system. By that I mean that there are a substantial number of people who enter the country and work illegally. We know that when their visa or right to stay in the country expires a substantial number of people continue to reside in the country, working or not, because they wish to do so. Increasingly, when they are apprehended by the police or by immigration officials, they claim asylum and claim support at the same time. Nothing can be done about their claim for asylum. Indeed, there is nothing that we would wish to do about their claim for asylum. That should be considered.
There is clearly an issue about whether people in the circumstances that I have described should be supported by the state while they make an asylum claim which, on all the evidence, appears to be substantially late. I remind the House, without going into the issue, that it is not fundamentally an issue of funding. The funding figure is substantial—£1 billion a year on asylum support, which is an average cost per person supported of £10,000 per year.
At heart, what we seek is no more or less than to say to people, "We want you to apply at the earliest reasonable possible opportunity if you believe you wish to apply for asylum". To reinforce that point, we are basically saying that state support will be available to people who do so behave and that state support, with some very important exceptions to which I shall come, will not in the alternative circumstances. To be direct about the matter, we believe that that is reasonable and necessary in the world that we occupy.
Therefore, we cannot accept amendments Nos. 11 and 12 because they would undermine the intention of the Government's measures for dealing with late claims.
For the reasons I have outlined, we need to introduce measures which will help us to have more order and control in the process. Our proposed changes to the support system strengthen our strategy of moving towards a more streamlined, managed and fair system than we currently have.
It is entirely reasonable to expect those who are genuinely in need of international protection to claim asylum as soon as reasonably practicable. It is not helpful to the achievement of an effective asylum

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process if there is no encouragement to applicants to come forward and to be frank with us. We believe that applicants are likely to modify their behaviour and to come forward at an earlier stage. The aim is to produce an orderly and managed process.
Our new measures are different from the position created in 1996. Clause 54 will not affect families with children. That is the direct response to the JCHR question. Support will be provided to asylum seekers with dependent children under 18, even if they have not applied for asylum as soon as reasonably practicable. In addition, those with care needs will be able to access national assistance, as they can now, if they have a need for care and attention which is not solely due to destitution or the effects of destitution, whether or not they applied early or late.
The Government are unable to accept Amendment No. 10B. The purpose of Clause 54 is to establish that there should be no presumption of support for an asylum seeker who makes his claim after entry to the UK, unless he can satisfy the authorities that he has made his claim as soon as he reasonably could have done. The amendment starts from the opposite viewpoint; namely, that there should be a presumption of support unless the Secretary of State can prove that a person has not made his claim without undue delay.
As I said when we considered this clause last week, it is an entirely reasonable expectation that those who want the United Kingdom's protection should claim asylum at the earliest opportunity. That will enable us to help the genuine cases by allowing access to our integration arrangements as soon as possible. At the same time, it will increase the likelihood of those who do not need our protection returning home.
I make no apology, therefore, that the clause is aimed at helping to achieve that situation. We believe that literally tens of thousands of people who make in-country applications could have claimed asylum on arrival.
I turn to the amendment. The Government's view is that a person who has a genuine reason for failing to claim asylum as soon as reasonably practicable will be able to explain what that reason was. There is clearly a duty on the Secretary of State to listen to that. Similarly, if the claimant is destitute, he will be able to show why that is the case. It is easier for an asylum seeker to tell us why he has made a late claim than for the Secretary of State to establish that. The information and the evidence is with the asylum claimant; it is not with the Secretary of State. Therefore, it is fair to expect claimants to put that evidence before the Secretary of State. They are in possession of the information of why they have not made the claim. Therefore, it is right that the burden of proof is on them.
We are asking no more of asylum seekers than we ask of our own citizens. Effectively, if they wish to claim benefit they are expected to co-operate with the processes of government. We have moved away from a world where there are almost automatic benefits irrespective of the reasonable requirements of the state. Therefore, we can see no reason why there should not be such requirements in these cases.
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I turn to the very important issues raised by the Joint Committee on Human Rights. I join others in thanking it for its work. I accept the invitation of the noble Lord, Lord Lester, to respond to those important considerations, and I shall do so now.
As regards Article 11.1 of the International Covenant on Economic, Social and Cultural Rights, Article 11 does not set an absolute standard. It is perfectly consistent with Article 11.1 for a state to impose reasonable conditions on the receipt of support and to guarantee only a lower level of support where a person has failed to comply with the condition in question. It is therefore reasonable to require asylum seekers to make their asylum claims as soon as reasonably practicable and to make their receipt of full support conditional on that. If they fail to do so, support will still be available to comply with Article 3 of the European Convention on Human Rights, as well as support for families with children and those with special needs, irrespective of whether they apply late. All of that is fully consistent with Article 11.1.
On specific legal response on the burden of proof, I fear that we disagree with the JCHR report. If people claim to have a well-founded fear of persecution under the refugee convention, that should be one of the first things that they communicate to the authorities after they arrive in the United Kingdom. Their reason for coming here is to claim asylum, not to seek work or to visit friends. It is therefore perfectly reasonable to expect them to register a claim for asylum at the first reasonable opportunity.
Lord Lester of Herne Hill: My Lords, as the Minister knows, many people who are unfamiliar with our system think it necessary to consult a lawyer before submitting their application. So, a day or a week after their arrival, they go to a lawyer to assist them in formulating their claim. Would that be a credible or genuine reason for the delay to which the Minister earlier referred?
Lord Filkin: My Lords, I shall not be drawn on the exact detail of how the regulations and advice, when prepared, will operate in practice. That will clearly depend on both the nature of the advice and the circumstances. It would not advance our discussions if I sought to engage in such detail. For those who enter our country and claim asylum at ports, the induction process will give them plenty of opportunity to seek advice and to understand how the process operates.
If applicants make their claim at a port, they will receive support. There is no doubt about that. Without a shadow of doubt, anyone who makes a claim for asylum at port will receive full support. If they make the claim in-country, they must show us why they have waited and give us reasonable evidence why they have done so.
I turn to other questions raised. The noble Lord, Lord Goodhart, asked about the standard of proof. Yes, it will be the civil standard of proof. The noble Earl, Lord Russell, asked about the person who walked from Waterloo to Lunar House. Clearly, a person's honest errors will not be penalised. A person

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who has made a genuine and honest error should be able clearly to advance that case and not be at risk of penalty. With regard to the question about torture, a person can lodge an asylum application even if he is still collecting evidence to back up his asylum claim. So, in a sense, the evidence about torture is subsequent to the lodging of the claim—although it is clearly relevant to consideration of the claim—so it does not bear on this point.
A further point arises from the JCHR's report about the extension of regulation-making powers. It says that the issue of when and how a person arrives is irrelevant to the issue of destitution. When and how a person arrives in the United Kingdom is crucial to whether we can be satisfied whether he is destitute. That enables us to discover for how long they have been in the UK, which is highly relevant to the judgment of whether it was reasonable for them to delay their application. Our intention is therefore to amend the NASS application form so as to require applicants for support to provide us with such information.
I accept that these are important issues, and especially appreciate the importance of the JCHR's comments but, for the reasons that I have stated, the power is necessary if we are to bring order to our system. The JCHR's questions have been good and important and I hope that I have fully answered them. Without seeking to irritate the noble Lord, Lord Lester, if there are points that I have not yet answered, I am unlikely to do much better this afternoon, but I shall certainly not deny him further consideration if that would be helpful.
Lord Lester of Herne Hill: My Lords, before the Minister sits down, perhaps I may say that nothing that he says could possibly irritate me in any circumstances. Of course, what he has said will be studied carefully by the Joint Committee on Human Rights. We are all grateful for what he has said so far by way of explanation, but he has not dealt with three points that we raised.
He explained why, in the Government's view, the burden of proof should be placed on the asylum seeker, but we made three other points about the lack of effective safeguards. First, there is the lack of objectivity in the requirement that a person must claim asylum as soon as reasonably practicable to be entitled to support. Secondly, there is the lack of any appeal to an adjudicator against a decision denying support. Thirdly, there is the absence of any power to provide support pending an application for judicial review of the decision to deny support. We attach great importance to such safeguards; why do the Government not consider them necessary to ensure that human rights are well protected?
Lord Filkin: My Lords, with the leave of the House, before the noble Lord sits down, perhaps I may at least respond on the issue of appeal.
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We do not accept that Article 6 of the ECHR necessarily applies, as we do not accept that the receipt of support is a civil right for the purposes of the article. That is especially so because the amendment not only confers no power to give support but prohibits the provision of support. But even if that is a civil right, judicial review is an adequate remedy for Article 6 purposes. Appeal to the asylum support adjudicators would be inappropriate, because they have no expertise on whether the asylum claim was made as soon as reasonably practicable.
If it is claimed that the Secretary of State is adopting an unreasonable stance on whether a claim is late, that can be judicially reviewed in the usual way. It is true that a person will not receive support subject to Article 3 of the ECHR—special needs and children excepted—during any judicial review, but a person does not need support effectively to pursue judicial review. Provided that he passes the usual means and merits test, he will receive funding for his legal challenge from the Legal Services Commission.
I apologise for not responding to the other two points raised. There has been pressure for the JCHR, the House and, sometimes, even pressure for the Government under the timetables.
Lord Lester of Herne Hill: My Lords, I am grateful for the Minister's answers.
Lord Goodhart: My Lords, we object to the principle behind Clause 54. I agree that Amendments Nos. 11 and 12 to some extent undermine that principle. However, Amendments Nos. 10B and 12A do not. They are simply a matter of natural justice. Those amendments would not prevent the Government from withholding support from people who do not make an asylum claim as soon as is reasonably practicable. It is simply a question of the burden of proof.
Someone who fails to provide evidence of the date of his arrival or of the reason for his delay in claiming asylum creates an inference that there was a delay for unjustifiable causes. So we are not here concerned with people who simply say, "We will not tell you anything about how long we have been here or why we have not applied before". We are simply considering cases in which some evidence is produced. In the ordinary manner, there will be an interview and some kind of investigation to decide what are the reasons. In such a case, there is no argument but that the burden of proof should rest on the Secretary of State. As I said, that is simply a matter of natural justice.
The amendment is important, so I seek to test the opinion of the House.
5.59 p.m.
On Question, Whether the said amendment (No. 10B) shall be agreed to.
Their Lordships divided: Contents, 56; Not-Contents, 110.

Division No. 2

CONTENTS

Addington, L.

Maddock, B.

Alderdice, L.

Mar and Kellie, E. [Teller]

Allenby of Megiddo, V.

Methuen, L.

Avebury, L.

Monson, L.

Barker, B.

Newby, L.

Beaumont of Whitley, L.

Oakeshott of Seagrove Bay, L.

Best, L.

Oxford, Bp.

Bradshaw, L.

Phillips of Sudbury, L.

Bruce of Donington, L.

Razzall, L.

Campbell of Alloway, L.

Redesdale, L.

Clement-Jones, L.

Rennard, L.

Dahrendorf, L.

Rodgers of Quarry Bank, L.

Dholakia, L.

Roper, L.

Falkland, V.

Russell, E.

Goodhart, L.

Russell-Johnston, L.

Greaves, L.

St. John of Bletso, L.

Greengross, B.

Sandberg, L.

Hamwee, B.

Scott of Needham Market, B.

Harris of Richmond, B. [Teller]

Sharman, L.

Holme of Cheltenham, L.

Sharp of Guildford, B.

Howe of Idlicote, B.

Shutt of Greetland, L.

Hylton, L.

Steel of Aikwood, L.

Jacobs, L.

Thomas of Walliswood, B.

Joffe, L.

Thomson of Monifieth, L.

Lester of Herne Hill, L.

Tope, L.

Linklater of Butterstone, B.

Wallace of Saltaire, L.

Livsey of Talgarth, L.

Walmsley, B.

McNally, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Filkin, L.

Alli, L.

Fyfe of Fairfield, L.

Andrews, B.

Gale, B.

Anelay of St Johns, B.

Gavron, L.

Archer of Sandwell, L.

Gilbert, L.

Ashton of Upholland, B.

Gladwin of Clee, L.

Bach, L.

Golding, B.

Bassam of Brighton, L.

Goldsmith, L.

Berkeley, L.

Gould of Potternewton, B.

Bernstein of Craigweil, L.

Graham of Edmonton, L.

Blackstone, B.

Grenfell, L.

Borrie, L.

Grocott, L. [Teller]

Bragg, L.

Hardy of Wath, L.

Brett, L.

Harris of Haringey, L.

Brooke of Alverthorpe, L.

Harrison, L.

Brookman, L.

Haskel, L.

Burlison, L.

Hayman, B.

Campbell-Savours, L.

Hilton of Eggardon, B.

Carter, L.

Hollis of Heigham, B.

Christopher, L.

Howie of Troon, L.

Clinton-Davis, L.

Hoyle, L.

Cohen of Pimlico, B.

Hughes of Woodside, L.

Corbett of Castle Vale, L.

Hunt of Kings Heath, L.

Crawley, B.

Irvine of Lairg, L. (Lord Chancellor)

David, B.

Davies of Coity, L.

Janner of Braunstone, L.

Davies of Oldham, L.

Jay of Paddington, B.

Dean of Thornton-le-Fylde, B.

Jeger, B.

Desai, L.

Jordan, L.

Donoughue, L.

Judd, L.

Dormand of Easington, L.

King of West Bromwich, L.

Dubs, L.

Kingsland, L.

Elder, L.

Layard, L.

Evans of Temple Guiting, L.

Lea of Crondall, L.

Falconer of Thoroton, L.

Levy, L.

Farrington of Ribbleton, B.

Lipsey, L.

1476

Macdonald of Tradeston, L.

Rooker, L.

McIntosh of Haringey, L. [Teller]

Sawyer, L.

Scotland of Asthal, B.

MacKenzie of Culkein, L.

Sewel, L.

Mackenzie of Framwellgate, L.

Sheldon, L.

Massey of Darwen, B.

Simon, V.

Merlyn-Rees, L.

Stone of Blackheath, L.

Milner of Leeds, L.

Symons of Vernham Dean, B.

Mitchell, L.

Taylor of Blackburn, L.

Morgan, L.

Temple-Morris, L.

Morgan of Huyton, B.

Thornton, B.

Morris of Aberavon, L.

Turner of Camden, B.

Nicol, B.

Walker of Doncaster, L.

Pendry, L.

Warwick of Undercliffe, B.

Pitkeathley, B.

Whitty, L.

Prys-Davies, L.

Wilkins, B.

Puttnam, L.

Williams of Elvel, L.

Ramsay of Cartvale, B.

Williams of Mostyn, L. (Lord Privy Seal)

Rea, L.

Rendell of Babergh, B.

Winston, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.10 p.m.
[Amendments Nos. 11 to 12A not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 13:
Page 31, line 27, at end insert ", or
(c) the provision of support under section 98 of the Immigration and Asylum Act 1999 (c. 33) or section 23 of this Act (provisional support) to a person under the age of 18 and the household of which he forms part."
The noble Lord said: My Lords, it is tempting to say that this is a minor and technical amendment, but it is a little more than that. The amendment is entirely consistent with the Government's position that asylum-seeker families with children will be supported, even if they have not applied for asylum, as soon, as is reasonably practicable.
Temporary support is currently provided to asylum seekers under Section 98 of the Immigration and Asylum Act 1999 if they are destitute, until the Secretary of State has determined whether support may be provided under Section 95. Clause 23 of the Bill duplicates that process for those who will be supported in accommodation centres.
All the amendment does is put beyond any reasonable doubt that families with children can be provided with temporary support, even if they have made a late claim. I believe that all Members of the House will be happy with the amendment and I beg to move.
On Question, amendment agreed to.
[Amendment No. 14 not moved.]
Clause 56 [Application for support: false or incomplete information]:
[Amendments Nos. 15 to 17 not moved.]
Clause 58 [International projects]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 18:
Page 33, line 31, at end insert "including external gateways into the UK managed by the UNHCR"
The noble Baroness said: My Lords, I want to make it clear from the start that this is a probing amendment. As so often happens when one wants to ask the Government to put their policy on the record, one has to table an amendment which will achieve an objective which one does not necessarily want to see on the face of the Bill. This is just such a case.
This is a genuine attempt to give the Government the opportunity to clarify a couple of press reports which have appeared during the past three or four weeks. They appear to show that the Government are intentionally developing a new asylum policy. When the Home Secretary gave a press statement to The Times and information to the BBC on Monday 7th October, he stated that he would start accepting refugees from next April for resettlement directly from overseas, working with the UNHCR. He stated:
"The most oppressed people in the world are too poor to pay traffickers to get to the UK. They stay in refugee camps in countries next door to those they have fled".
I agree with that judgment. The press release continued:
"We will start taking such refugees into the UK—small numbers at first, but building up as we get a grip on wider abuse of the asylum system".
I referred to the matter on 7th October when the House was making representations about a recommitment. I then referred to it as an example of new provisions which would justify further time being allocated for the consideration of the Bill in a recommitment. The Minister then said that we had already debated it all on another matter. On looking back at previous debates in Committee, I assume he meant Amendment No. 163 which was moved on 15th July by the noble Earl, Lord Sandwich, at col. 1048. But the trouble is that at that stage the details of the Government's intentions were not clear. Only their recent press releases have begun to clarify their position. Therefore, I believe that it is necessary to go further with that clarification.
On 7th October, in the Government's briefing note to editors—not part of the statement which appeared in the press—they stated that:
"For the first time this will provide a managed, tight, external gateway for those genuinely fleeing persecution".
Mr Blunkett is personally quoted as saying that this is,
"a new UNHCR gateway".
My questions for the Minister are as follows. What is the Government's response to the briefing circulated to noble Lords by the UNHCR in response to the Home Secretary's announcement on 7th October in which it raises several qualms? What do the Government mean by "small numbers next year" involved in the resettlement programme? How small is small? It is tens, hundreds or thousands? What are the Government's plans? What is the maximum number that the Government intend to resettle here if they get the asylum application system under proper control?
From which countries will they come? What did the noble Lord, Lord Filkin, mean on 15th July when he called it a "quota" scheme? That is a significant word
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and it appears at col. 1051. When one talks about quotas, one tends to be defining people coming here either by ethnic background or by country group. In this context, often one is talking about having achieved an idea of the total number after negotiation with EU states or others having determined how many asylum seekers/refugees they, too, will take under similar circumstances.
On 15th July, the Minister appeared to say that the applications would be made through the UNHCR and it would recommend to the Government who might come here for settlement. Where will potential resettlement people make their applications and to whom? Is it to be at embassies or directly at UNHCR offices overseas? Can applicants make those applications from within the country where they are being persecuted or do they first have to flee across the border? For example, will people currently living in Zimbabwe who are being persecuted be able to apply inside or outside the borders of Zimbabwe? Is Afghanistan included or excluded from the scheme? How will the Government's decision on this be affected by the tripartite agreement the Government reached on 12th October between the UK Government and the transitional Islamic state of Afghanistan and the UNHCR?
Is there now an agreement that some of those who are currently living in Sangatte will be allowed to come here? I am aware that on 15th July the Minister said that there would have to be some way of dealing appropriately with the inhabitants of Sangatte. At that stage, he indicated that he would write to the noble Earl, Lord Sandwich. I have not had sight of such a letter and wondered whether it had been sent and whether the Government had decided on the process of settling the people at Sangatte somewhere and whether some of them will come to this country?
I appreciate that the Government must have carefully considered the new policy—for "new policy" they call it—before they announced the details to the press on 7th October. The problem is that so far the detail of that policy has not been made available to your Lordships' House. I therefore thought that I should table the amendment today so that the Minister could put the Government's thinking on the record. I beg to move.
6.15 p.m.
Lord Hylton: My Lords, the noble Baroness, Lady Anelay, mentioned Sangatte in France. If the UNHCR services are to be called upon to sort out the considerable numbers of potential refugees milling around that area, will it be possible for the Government to sort out for our benefit those people who have a strong connection with this country? Such a connection could be, for example, having close relatives here or possessing a good knowledge of the English language.

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I have tried to raise some of these issues in the past but without much success. I should be most grateful if the Minister could throw some light on them.
Baroness Carnegy of Lour: My Lords, will it be necessary to amend the Bill before it leaves Parliament to accommodate the new plan?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness, Lady Anelay, for setting out the intentions behind her amendment, which was extraordinarily helpful of her. The noble Baroness will understand that it will be difficult for me to give some of the precise details for which she asked.
In essence, we sympathise with the motivation behind this probing amendment. Clause 58 provides the Secretary of State with greater flexibility to fund and participate in projects connected to migration. Projects may be designed to reduce unregulated migration, effect voluntary or compulsory return of migrants or provide settlement to migrants in the UK or elsewhere.
The clause allows the Secretary of State to provide financial support to organisations involved in such projects and to provide migrants with financial or other assistance. It does not set out the detail of those projects—simply the parameters within which funding may be granted.
Clause 58 contains the legal base for funding our new resettlement programme. The programme will provide a safe haven for recognised refugees whose life, liberty, safety or other fundamental human rights cannot be protected in the country where they have been resident. On 7th October, the Home Secretary announced that our resettlement programme will begin on 1st April 2003. In providing a humanitarian gateway to the UK, we are not only offering much needed sanctuary to those most in need but are reducing the need to have recourse to human traffickers and demonstrating our support for the UNHCR's calls for greater support to be provided to regions hosting large refugee populations.
We cannot accept the amendment for a number of reasons. We are not in a position at this stage to say whether the UK's resettlement programme will or will not be managed by UNHCR. We hope that the commissioner will certainly be involved, and we intend that, in particular, it will play a critical role in the initial selection of possible candidates for resettlement. However, overall management of the project will be a matter for the UK Government. We will retain control over the decision to permit entry to the UK—including by setting our annual quota—and must satisfy ourselves that no abuse or fraud is allowed to permeate the programme.
We will be discussing with the UNHCR, other relevant international bodies and non-governmental organisations precisely what will be their role in the programme. I hope that UNHCR's role will include among other things referring potentially suitable cases to us.
Lord Avebury: My Lords, can the Minister confirm that UNHCR already refers potentially suitable cases
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under the mandate refugee scheme and that the UK is accepting something like 500 persons so nominated per annum? Will the new scheme be completely different? If so, how will it dovetail and what will be the initial numbers? Presumably they will be additional to the 500 refugees that we are already accepting.
Lord Bassam of Brighton: My Lords, it would not be proper for me to attempt to provide that level of detail because we have to work through some of the issues—particularly in consultation and discussion with the organisations to which I referred.
We hope that the UNHCR's role will include also conducting overall co-ordination of the global resettlement effort and advising us on best practice for our programme's operation. That would parallel the role that the UNHCR plays in resettlement programmes operated by other European countries.
Clause 58 already provides for all that to take place and allows the Secretary of State to fund projects managed by the UNHCR, should such an assignment of management responsibility occur. There is no need to duplicate that provision by making a specific reference in Clause 58(1)(e) to the UNHCR or projects involving that body. To create such duplication would undermine the need for brevity in legislation—something of which the House is often reminded—and possibly its accuracy, which is as important. The clause is primarily intended to provide the Secretary of State with flexibility in funding projects. As we intend to provide resettlement exceptionally, outside the rules, it is neither appropriate nor necessary that details of its operation appear in primary legislation. To do so would undermine the clause's flexibility, the programme's operation and the way in which we work with the UNHCR, NGOs and other international organisations.
Clause 58 is designed to support, not define, the design and implementation of the resettlement project. Continuing consultation with the UNHCR, expert bodies and experienced resettlement countries will inform its development so that we implement a model based on best practice. When developed, the detail of the programme will be publicly available as part of the immigration department's policy instructions and will be kept under close review, to take into account emerging experience and developments.
We fully understand the importance of the UNHCR being seen to be acting within its mandate when participating in a project of whatever type—as failure to act in accordance with the mandate may mean that the commission is acting unlawfully. However, whether or not the UNHCR is carrying out its protection mandate is ultimately for that body to judge. It is not something that can be affected, determined or achieved automatically by reference to a mandate in the clause.
I was asked whether people from Sangatte will be resettled under the scheme. The answer is no. Sangatte is subject to different arrangements. The noble Baroness, Lady Carnegy, asked whether legislation

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would be needed to amend the plan. The resettlement scheme will be provided exceptionally outside the Immigration Rules, so the answer is no.
Baroness Carnegy of Lour: My Lords, my noble friend used her amendment to ask about the implications of the Home Office press release. Do the Government envisage implementing that press release and, if so, will they have to amend Clause 58? I understood the Minister to say that that would not be necessary.
Lord Bassam of Brighton: My Lords, my understanding is that will not be necessary.
As to numbers, we estimate something like 500 migrants per year. We do not yet know the source countries, but that will be determined over time and through consultation.
Lord Hylton: My Lords, before the Minister sits down, can he say whether the different arrangements regarding Sangatte will, in his opinion, lead to a real decrease in the number of people trying to enter this country illegally, at great risk to their own lives and causing great disruption to transport services?
6.30 p.m.
Lord Bassam of Brighton: My Lords, we are achieving greater and higher levels of co-operation with our colleagues in France. The arrangements we are putting in place in regard to Sangatte should deal more than adequately with the issues raised by the noble Lord. I hope that the answer to his question is yes.
I hope that I have dealt with the other points that were raised during the debate. If I have not and there are particular issues on which noble Lords require further information, I shall be more than happy to respond to them, perhaps through correspondence.
Baroness Anelay of St Johns: My Lords, I am grateful to the noble Lord, Lord Hylton, for his contribution on the issue of numbers and for the later clarification that he sought from the Minister. I am grateful also to my noble friend Lady Carnegy for the important clarification that she obtained in regard to the Government's belief that there is no need to amend this clause in order to achieve the policy they set out in the press release on 7th October. I thank the Minister for giving me so little detail so courteously. I shall, of course, continue to pursue these matters. But this is a probing amendment and I do not intend to press it tonight.
It would appear that the House is being asked, in a sense, to give the Government a blank cheque in regard to this clause when the Government have said that they have not worked out the detail. Obviously I was being far too ingenuous in commenting in my opening remarks that I thought that the Government must have worked through the policy in great detail before launching it upon the unsuspecting world on 7th October. I got that totally wrong.
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I am intrigued that the Minister said that the Government will be achieving different arrangements in regard to Sangatte. As he will expect, I shall seek to find out—perhaps through Written Questions—what on earth those different arrangements may be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 [Right of appeal: general]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 19:
Page 48, line 6, at end insert—
"(2A) A variation or revocation of the kind referred to in subsection (2)(e) or (f) shall not have effect while an appeal under subsection (1) against that variation or revocation—

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending."

The noble Lord said: My Lords, this is genuinely a technical amendment. It seeks to ensure that where the Home Office curtails or revokes a person's leave to remain, the curtailment or revocation will not take effect until any appeal against it has been concluded. More explanation than that is not required. I have explained it as concisely as I can. I beg to move.
On Question, amendment agreed to.
Clause 81 [Appeal: claim for asylum]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 20:
Page 48, line 10, leave out "a claim for asylum" and insert "an asylum claim"
The noble Lord said: My Lords, in moving Amendment No. 20, I shall speak also to Amendments Nos. 22 and 23. Essentially, these are tidying amendments. In Committee, Clause 109 was amended to establish a definition of "asylum claim" for the whole of Part 5. I am advised that there is no need for a separate definition for the purposes of Clause 81. We simply propose to remove it. I beg to move.
Lord Brooke of Sutton Mandeville: My Lords, I quite understand the amendment, but why does the title of the clause remain "claim for asylum"?
Lord Bassam of Brighton: My Lords, presumably because that is the issue covered by the clause.
On Question, amendment agreed to.
Lord Avebury Lord Avebury moved Amendment No. 21:
Page 48, line 13, leave out "one year" and insert "28 days"
The noble Lord said: My Lords, at the moment, the vast majority of people who are granted exceptional leave to remain for 28 days or more can appeal to an adjudicator to upgrade their status to that of a refugee. That gives them access to an independent evaluation of their claim and, if they are successful, to important benefits in terms of their immediate family reunion rights and settlement in the United Kingdom.
The courts have commented on a number of occasions on the benefits that refugee status confers over exceptional leave to remain, the most significant being that of family reunion. In the case of Saad,

1483
Diriye and Osorio, the Court of Appeal stated clearly that the recognition as a refugee of a person who is in fact a refugee was an international obligation under the convention.
I do not suppose that the Minister will give me what I am asking but, if he cannot accept the amendment, will he at least assure the House that where refugee status is refused but ELR is granted, full reasons for the refusal of refugee status and the grant of ELR will be given to the applicant? This is very important because, if the appeal is delayed for one year, as the Government plan, there will that much of a gap between the finding of the facts in the initial determination and the adjudication on those facts on appeal.
It would not be administratively difficult for the Government to do this because in many cases they already explain the decision to grant ELR—for example, where the Home Office first refuses a person's application for refugee status and then later a decision is made to grant ELR on the basis of subsequent representations.
When we discussed this matter in Committee, the noble Lord, Lord Filkin, said that it was a matter of clogging up the system: that if you had a significant number of cases of people applying for asylum—he gave the example of Kosovo in 1999—who are not found to qualify but are seen to have a right to exceptional leave to remain, such people would clog up the system, as the Minister put it, if it was necessary to test their appeals. That is the primary justification for putting these people in a position of not having a right of appeal for 12 months after they have been granted ELR.
However, reference has been made by the noble Baroness, Lady Anelay, to the growing practice of Ministers issuing policy through press release. In this case, we have the statement made by the Home Office on 7th October that it intends to,
"end the routine granting of Exceptional Leave to Remain…on a country basis, and review its use and scope to focus it on those who really need special humanitarian protection".
If that is the case, we will not need to take precautions against those granted ELR continuing to enjoy the rights that they have already under the existing system of changing their status to that of refugee.
Moreover, we hope that there will not be cases such as Kosovo or Afghanistan—which is the other big example—where ELR was given on a country basis to anyone who applied, bearing in mind the impossibility of sending anyone back to those countries. If we do not have another Kosovo or Afghanistan situation, it is very difficult to envisage circumstances where the international community decides to restore the rights of people in a particular territory, and thus anyone coming from such territories who seeks asylum in this country may be seen to have a capacity to return within a measurable space of time. That is the kind of situation in which ELR is granted on a country basis, but we do not envisage that happening again in the future.
It is unsatisfactory that genuine refugees must reapply for asylum after a whole year on ELR. It will waste resources because it will put an additional administrative load on the Home Office to process asylum claims for a second time when they have been sitting on the shelf for the past 12 months. I hope that the Government will accept the amendment. I beg to move.
Lord Bassam of Brighton: My Lords, this issue was debated at some length on 23rd July. It is not my intention to cover ground that was covered on that occasion. However, I am aware of the understandable concern that some future government might abuse that provision. In theory, it would be possible to deny an unsuccessful asylum seeker the right of appeal indefinitely by granting leave to remain for successive periods. As was explained to the House on 23rd July, the Government would not seek to do that. I am happy to give that reassurance again. However, one can fully understand the anxieties that have prompted the amendment.
We have, as a consequence, asked officials to consider whether it would be possible to amend Clause 81 to provide a right of appeal wherever an unsuccessful asylum seeker is granted exceptional leave to remain for more than a year in total—so, two grants of a year, two grants of eight months, or three grants of six months would all result in the right of appeal.
Regrettably, it has not been possible to resolve how the matter should be dealt with in time for this debate. However, it is our expectation that we shall be able to satisfy your Lordships at Third Reading that the concern that is understandably addressed in the amendment has been properly reflected upon. It is important that we get the details right.
If this amendment were accepted, it would still be possible to deny the right of appeal. Instead of granting a year at a time, government could grant a month at a time. No doubt that is not the intention or spirit behind the amendment, but it opens up that unpalatable prospect. It would be a most regrettable outcome.
The noble Lord asked a specific question about giving full reasons when refusal has occurred. I am more than happy to give the assurance that full reasons will be provided. I hope that in the light of those assurances the noble Lord will feel able to withdraw his amendment.
Lord Avebury: My Lords, I am most grateful for the two points that the Government have conceded: first, that full reasons will be given for the granting of exceptional leave to remain and for the refusal of refugee status where that decision is made by the Immigration and Nationality Directorate; secondly, that if cumulative periods of granted ELR add up to over a year, the right of appeal for refugee status will kick in at the end of 12 months. We very much look forward to an amendment at Third Reading giving effect to that undertaking. In the meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 22 and 23:
Page 48, line 14, leave out "claim for asylum" and insert "asylum claim"
Page 48, line 16, leave out subsection (3).
On Question, amendments agreed to.
Clause 83 [Matters to be considered]:
Lord Filkin Lord Filkin moved Amendment No. 24:
Page 49, line 11, leave out "against an immigration decision" and insert "or 81(2) against a decision"
The noble Lord said: My Lords, this is a minor technical amendment. The 1999 Act makes it clear that in an asylum appeal the adjudicator can consider any relevant evidence, whether or not it could have been foreseen when the decision to appeal against it was taken.
Clause 83 repeats this provision. It does not include an asylum appellant who has been given limited leave to remain on some other basis—that is, those appealing under Clause 81(2). The amendment corrects that image. I beg to move.
On Question, amendment agreed to.
6.45 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 25:
Page 49, line 15, leave out subsection (5).
The noble Lord said: My Lords, this amendment seeks to probe for the second time why the Government intend that appeals against the refusal of an entry clearance and against the refusal of a certificate of entitlement should be assessed on a different footing from other appeals. In these cases, an adjudicator will be able to consider only evidence relating to the date of the decision, as opposed to all relevant evidence as at the date of the appeal hearing.
Clause 83(5) lays down that in appeals against refusal of entry clearance or refusal of a certificate of entitlement to the right of abode in the United Kingdom—both are appeals made outside the United Kingdom—an adjudicator,
"may consider only the circumstances appertaining at the time of the decision to refuse".
That is in contrast to appeals made from within the United Kingdom, where an adjudicator,
"may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision".
On 23rd July, I asked the Minister the following question:
"Why should an adjudicator be permitted to consider what weight, if any, to give post-decision evidence in an immigration matter where the appellant is in the United Kingdom but not be allowed to consider the same range of evidence when the appellant is overseas?".—[Official Report, 23/7/02; col. 334.]
In the course of his reply, the Minister said that he would write to me, if appropriate. Indeed, on 19th September, I received a communication from the
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noble Lord's honourable friend in another place, Mrs Beverley Hughes. In the final part of the letter, under the heading "Entry Clearance Appeals", she states:
"We have considered whether adjudicators should be able to take into account new facts when determining an appeal but remain of the opinion that despite the delays that can occur that Entry Clearance Officers are best placed to deal with these. Further relevant evidence is much easier to investigate in the country of origin and can be put direct to the ECO without penalty as soon as it is available rather than waiting for the appeal hearing, which may result in adjournment thereby delaying matters still further.
The new provisions for asylum seekers are not designed to give preference to such cases and disadvantage those applying for Entry Clearance but to streamline the appeal process and enhance one stop appeals, by reducing the opportunities for delay".
I am, of course, extremely grateful to Mrs Hughes for taking the trouble to write me a letter and to give me that explanation. But I must confess to being not much wiser about the rationale that lies behind the distinction. My understanding is that in other parts of the Bill the Minister is urging us to accept that an appeal is an appeal and it does not matter whether it is from inside the United Kingdom or launched from some other country; that no one launching an appeal against an unfavourable decision from some other country will in any way be disadvantaged.
If that is so, why is there this plain distinction on the face of the Bill between the kind of evidence that can be taken into account in these two sets of circumstances? I am most apologetic to the Minister for raising this matter again, but I wonder whether he is in a position to unpack Mrs Hughes's answer and enlighten me further. I beg to move.
Lord Filkin: My Lords, to respond in short: a little bit, but we will see how much that manages to satisfy.
As the noble Lord, Lord Kingsland, knows, under the 1999 Act, the adjudicator is to decide the case on the basis of the circumstances applying at the time he hears the case if those circumstances relate to an asylum or Article 3 human rights matter. Other matters are to be decided according to the circumstances applying at the time of the decision. This followed case law, that of Ravichandran. Section 83 extends the principle so that nearly all appeals are dealt with on the "time of hearing" basis. That has advantages for one-stop appeals, in that updated circumstances can be considered without requiring a new decision or appeal.
As the noble Lord pointed out, the exception is appeals against refusal of entry clearance or a refusal of certificate of entitlement. I shall not repeat his quotation, which I can declare to be exact, from the letter of my honourable friend Beverley Hughes. Why are entry clearance cases treated differently? In short, they are not one-stop appeals. In a one-stop appeal, the adjudicator will consider everything arising up to the date of the hearing. That will usually include asylum or human rights issues relating to a potential removal. They look forward to what the situation might be when removal is likely to take place, so it is appropriate that the evidence considered is the latest available. Overseas cases, however, are an assessment

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of a decision taken on the basis of whether or not someone qualifies at that time under the Immigration Rules.
Case law in ordinary immigration cases suggests that it is fair to consider evidence that was not before the decision-maker but that is relevant to the decision and relates to circumstances at the time that the decision was taken. However, case law goes no further than that. Where circumstances have changed, the Government believe that it is right that a new application be made to the entry clearance officer. Adjudicators will still be able to take account of evidence that throws light on the facts at the date of the decision. However, the result of putting in evidence at the hearing can only incorporate delay if further investigation is needed, especially where the evidence originates from abroad. I hope that that response is helpful in at least some measure.
Lord Kingsland: My Lords, I could not help noticing that the Minister's reply to me on this matter lacked the ebullience and gusto of his replies to other Members of the Opposition.
Those appealing from abroad as a result of Clause 83(5) are placed in a less favourable position than those appealing from the United Kingdom. Nothing that the Minister said from the Dispatch Box this afternoon gave me confidence that the Government had given a rationale for the acceptability of this distinction. I will reflect on what the Minister said and I may return to the issue at Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 [Ineligibility]:
Lord Avebury Lord Avebury moved Amendment No. 26:
Page 50, line 20, leave out paragraph (d).
The noble Lord said: My Lords, this amendment relates to a matter that we discussed in Committee. The noble Lord, Lord Filkin, has been good enough to hear further representations at two meetings during the summer.
The Immigration Rules do not cover all the circumstances in which the Secretary of State has a published policy or concession on who should be allowed to enter or to remain in the United Kingdom. Those concessions cover a wide range of circumstances, such as business people coming here to work, people who come on the basis of marriage and whose partners then die, and people who come here on the basis of a family relationship. Those refused permission to rely on such a concession or policy have a limited right of appeal. Such appeals are usually based on the claim that the Secretary of State got the facts wrong; for example, a decision that the policy did not apply to an appellant on the grounds that he was not working in a certain type of job, when in fact he was. Clause 86 removes any right of appeal to an adjudicator in those circumstances.
We accept that inevitably new policies and concessions will develop to meet new situations. There cannot ever be a state of perfection, where all policies
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are incorporated into the rules. However, certain long-standing concessions have not yet been incorporated into the rules. We ask that they be incorporated as soon as possible; that is to say, before the end of this calendar year. We must bear in mind that once the Bill has Royal Assent people who formerly would have had a right of appeal will be deprived of it despite the long-standing nature of the concession in question. In addition, I think that it is reasonable to ask that a review of policies and concessions be carried out at least annually, and that statements of changes to the Immigration Rules incorporate new policies at least annually. I beg to move.
Lord Bassam of Brighton: My Lords, this amendment would permit an applicant to appeal even where he had sought to stay for a purpose not permitted by the Immigration Rules. Such an appeal would have to be dismissed. The Immigration Rules provide that an application must be refused where the applicant seeks to enter or remain for a purpose not covered by the rules—that much is plain. It would therefore be impossible for an adjudicator to uphold an appeal made wholly on those grounds. In some cases, the adjudicator must simply dismiss the appeal. This amendment would therefore provide an empty right of appeal, giving people false hope, and delaying the consideration of substantial appeals that may lie in a queue behind them. In some cases, the adjudicator can find that policy published by the Secretary of State has not been followed. However, even in those cases the adjudicator is not entitled to consider the merits of the decision. The only point at issue is whether the policy has been followed. In other words, the point is purely one of procedure and process.
The jurisdiction of adjudicators is substantive. Their function is to allow or dismiss appeals. We have a separate mechanism—judicial review—for challenging a decision by a public body on a point of procedure. The existing situation represents at best a duplication of functions and at worst a confusion of roles. Clause 86 takes nothing away from applicants. An appeal to an adjudicator adds nothing to the remedy open to them by way of judicial review, or through a simple letter to the Immigration and Nationality Directorate. It would be open to adjudicators to make extra-statutory recommendations in these cases, but such a recommendation is not binding and can only suggest that the decision-maker review new evidence. In any event, the Home Office reviews new evidence as a matter of policy, so the power to make recommendations adds nothing to what could be achieved simply by contacting the Home Office directly. Again, a failure by officials to consider fresh evidence would be a matter for judicial review.
Although one can understand the noble Lord's desire to ensure that there is proper process and that the merits of procedures have been properly understood, for the reasons I have given, we cannot agree to this amendment and we continue to resist it.
Lord Avebury: My Lords, I cannot understand why the Minister is being so negative about the

1489
amendment, given that after the 1999 Act some of the concessions at least—although not as many as anticipated—were incorporated into the rules.
We certainly expected the Minister's reply to give us some undertakings about the incorporation of these long-standing concessions into the rules, but he ignored that part of my speech. I mentioned several cases, such as business people who come here to work, people who come here on the basis of a marriage and whose partners die and people who come here on the basis of family relationship. In all those cases, there would have been a limited right of appeal, which I mentioned. I had thought that when we discussed the matter during the Summer Recess, we received some assurances that the Government would incorporate those long-standing concessions into the rules so that people would continue to enjoy the limited rights of appeal—as the Minister said, they are not extensive—on matters of fact.
Although I cannot press the matter to a Division at this stage, I am extremely unsatisfied with the noble Lord's answer and I hope to pursue it with him—
7 p.m.
Lord Bassam of Brighton: My Lords, I have looked through my notes. They make it plain that we have registered the noble Lord's point. We need to do further work on incorporating those concessions into rules. We hope that we shall be able to make real progress by next year so that the process of incorporation will coincide with the commencement of Part 5. That may not go as far as the noble Lord would like, but that is our honest endeavour and what we seek to do. That may make him a little happier in withdrawing his amendment.
Lord Avebury: My Lords, that is a much better reply than the Minister gave at first. If it is possible to incorporate the long-standing concessions into the rules to coincide with the coming into force of Part 5, that will go a long way towards meeting what we are aiming to do. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 27:
Page 50, line 31, leave out from "on" to end of line 32 and insert "any or all of the grounds referred to in section 82(1)(b), (c) and (g)"
The noble Lord said: My Lords, this group of amendments would add greater clarity to the legislation. I shall run fairly quickly through each amendment. Government Amendments Nos. 27 and 28 protect the right of appeal on asylum grounds where an appeal would otherwise be prevented by the operation of Clauses 86 and 87 respectively. Amendment No. 29 simplifies Clause 90(2) by replacing the list of appealable decisions with references to those decisions, thus avoiding repetition.
Amendment No. 30 clarifies that the trigger for suspensive asylum, human rights or EEA appeals is a decision made on an application on those grounds, not on the grounds of the appeal themselves. Amendment No. 31 is a minor and genuinely technical amendment to clarify that, where a certificate has been issued under Sections 11(2) or 12(2) of the Immigration and Asylum Act 1999 on the removal of asylum claimants to a third country, a person may not appeal under Section 80(1) while they are still in the United Kingdom.
Finally, Amendments Nos. 32 and 33 are technical amendments representing the knock-on effect of government amendments made elsewhere in Clause 109 concerning the definition of a human rights claim.
I hope that those explanations provide the necessary clarity. I beg to move.
Lord Kingsland: My Lords, I have a question about one of the amendments, which I hope I have understood. I am sure the noble Lord will correct me if I am wrong.
Amendment No. 29 might appear on the face of it to be simply a drafting amendment, removing five paragraphs that are repeated elsewhere in the Bill and replacing them with a simple cross-reference. However, two of the provisions that currently appear in the list in Clause 90(2), which the amendment would replace with a cross-reference to the list in Clause 80(2), are worded slightly differently from those to which the cross-reference will point if the amendment is agreed to.
Clause 90(2)(b) and (c) allows a person to appeal from within the United Kingdom if he is appealing against a refusal to vary his leave to enter or remain, or against a variation of that leave. The Government propose to delete those words from the clause and replace them with a cross-reference to similar words in Clause 80(2). However, the wording is not quite the same in these two cases, although it is the same in the other three provisions to be replaced by cross-references.
Clause 90(2)(b) allows a person to appeal from within the United Kingdom if the appeal is against,
"refusal to vary a person's leave to enter or remain in the United Kingdom".
However, by replacing those words with a cross-reference to Clause 80(2)(d), the amendment will allow an appeal from the United Kingdom only if the appeal is against,
"refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain".
By replacing the existing wording of Clause 90(2)(b) with the cross-reference I have just quoted, the amendment effectively adds,
"if the result of the refusal is that the person has no leave to enter or remain".
The same words would also effectively be added to those in Clause 90(2)(c).

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What is the effect of that on the right to appeal from within the United Kingdom allowed under Clause 90? Does it mean that a person cannot appeal from within the United Kingdom if the Secretary of State refuses to vary, or does vary, his leave to enter or remain, unless as a result he would have no leave to enter or remain? What would be the position of a person whose leave to remain was varied but who wanted to challenge the variation, perhaps on the grounds that an extension was not long enough? He would retain the right to remain in the United Kingdom, but, as I read the amendment, he would no longer have the right to appeal from within the United Kingdom under Clause 90, because of the effective insertion of the words that I have just quoted.
I apologise for what might seem to be a Committee point, but I hope your Lordships will agree that it is important to ensure that the effects of government amendments tabled late in the Bill's passage are probed and understood just as much as those tabled in Committee. I hope the noble Lord will be kind enough to help clarify the situation, or at least to respond to my observations. There may be a very simple explanation that I have entirely missed.
Lord Brooke of Sutton Mandeville: My Lords, mine is a more modest question, but I remain a little bemused about why the title in Clause 81 remained the same after government Amendments Nos. 20, 22 and 23. My question relates to Amendment No. 32, which takes out the original words, which ended at the end of line 23 with the conjunction "and". The words that replace them do not return the conjunction "and". Is that significant? If not, why was "and" included in the first place? If there is significance, what is it?
Lord Bassam of Brighton: My Lords, I am most grateful to the noble Lord, Lord Kingsland, for asking what seems a very simple question. I hope that my response is equally simple. It is apparently a drafting amendment, because the wording was different and should not have been. That is what it amounts to. The references should coincide with the decision which the appeal is against. That is the simple explanation.
I do not have an answer for the noble Lord, Lord Brooke, as to why the word "and" was not replaced. If I receive an answer very shortly, I shall endeavour to provide it to the noble Lord—and I have just received the answer. The change was made for clarity of drafting and there is no change in effect.
On Question, amendment agreed to.
Clause 87 [Visitor or student without entry clearance]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 28:
Page 51, line 1, leave out from "on" to end of line 2 and insert "any or all of the grounds referred to in section 82(1)(b), (c) and (g)"
On Question, amendment agreed to.
Clause 90 [Appeal from within United Kingdom; general]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 29 and 30:
Page 51, line 28, leave out paragraphs (a) to (e) and insert "an immigration decision of a kind specified in section 80(2)(c), (d), (e), (f) and (j)"
Page 52, line 1, leave out from "decision" to end of line 14 and insert "if the appellant—

(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or

(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."

On Question, amendments agreed to.
Clause 91 [Appeal from within United Kingdom: "third country" removal]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 31 to 33:
Page 52, line 16, leave out from "person" to "if" and insert "may not appeal under section 80(1) while he is in the United Kingdom"
Page 52, line 21, leave out paragraph (a) and insert—"
(a) the appellant has made a human rights claim,"
Page 52, line 24, leave out "claim mentioned in paragraph (a)" and insert "human rights claim"
On Question, amendments agreed to.
Clause 92 [Appeal from within United Kingdom: unfounded human rights or asylum claim]:
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before calling Amendment No. 34, I have to inform your Lordships that if it or Amendment Mo. 35 is agreed to, I will not be able to call Amendment No. 36 under the pre-emption rules.
Lord Goodhart Lord Goodhart moved Amendment No. 34:
Page 52, line 30, leave out subsection (2).
The noble Lord said: My Lords, in moving Amendment No. 34,I wish also to speak to the other amendments in this group which are in the names of my noble friends and myself; namely Amendments Nos. 37, 38, 38A, 38B, 39, 39A, 40 and 43A.
This group of amendments concerns Clause 92. The purpose of the clause, as it now stands after its amendment in Committee, is to exclude the right of appeal on asylum or European convention grounds in cases which the Home Secretary certifies as clearly unfounded. That test is indeed strengthened for the countries specified in subsection (4), which is commonly known as the "white list". The Government, according to the report of the Joint Committee on Human Rights, apparently think that there is still a right to appeal from outside the United Kingdom and that all that has been excluded is the right to an in-country appeal. However, I have found it impossible to see how Clause 92 can have that effect. I agree with the Joint Committee that it appears pretty clearly to exclude any right of appeal in those cases, either in-country or outside the country.
The amendments in this group have a number of different purposes. Amendment No. 34 would allow all applicants who face a return to their country of origin to have a right of appeal which would in fact be an in-country right of appeal on either asylum or ECHR grounds. Amendments Nos. 37 and 38 would mean that the "white list" could operate only in respect of asylum claims and not claims made under the Human Rights Act. I have no hesitation in conceding that both these amendments are effectively wrecking amendments. We feel very strongly indeed that there should be a right of appeal in all these cases. We opposed the provision in Committee, and effectively we oppose it again now.
Amendments Nos. 38A and 38B would have a more limited effect as they would delete two countries from the "white list". The "white list"—and particularly a number of those countries—has been the subject of adverse comment in the Joint Committee's report. I should apologise to the Republic of Cyprus for the fact that it appears in Amendment No. 38A. That was not intended; it should have been the Czech Republic. Unfortunately, somewhere between my drafting and the Public Bill Office, it appeared as Cyprus rather than the Czech Republic.
Amendment No. 39 removes the power to add countries to the list by statutory instrument. Amendment No. 39A, a relatively minor amendment, prevents the order being made under subsection (5) without prior consultation.
All these amendments are covered by the report of the Joint Committee. In paragraphs 32 and 33 of its report, the Joint Committee points out, as I said, that the effect of Clause 92 is to exclude any right of appeal either inside or outside the UK to an adjudicator on grounds that removal from the United Kingdom would breach either the refugee convention or ECHR rights. The Joint Committee goes on to say that that would result in inadequate protection of human rights. At the end of paragraph 32, the Joint Committee states:
"In our view, the removal of any right of appeal results in there being inadequate protection for the human rights of claimants".
As I said, Amendment No. 34 ensures that the right of appeal will remain. Amendments Nos. 37 and 38 will retain the right of appeal for claims based on the European Convention on Human Rights. I accept that most claimants would appeal on both grounds. So the amendments would very considerably limit the effect of the clause as it now stands.
On the "white list", the Joint Committee said:
"The presumption that a country is safe is of questionable validity. As observed on recommitment, the United Nations High Commission for Refugees…does not accept that any country can be declared 100 per cent safe, a view shared by the House of Lords Select Committee on the European Union. There is also widespread discrimination against certain groups, such as Roma in the Czech Republic and the Slovak Republic".
It is that reference that has led us to choose those two countries as the subject of our Amendments Nos. 38A and 38B. I should say, however, that—the rather
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lengthy—footnote 41 to the Joint Committee's report indicates that a number of the other candidate states have a less-than-ideal record as well.
At the end of paragraph 37, the Joint Committee goes on to say:
"in view of the well-authenticated threats to human rights which remain in the states seeking accession to the European Union, we consider that a presumption of safety, even if rebuttable, would present a serious risk that human rights would be inadequately protected. We consider that the presumption of safety is unacceptable on human rights grounds, and we draw this to the attention of both Houses".
That is a very strong comment indeed.
Amendment No. 39 omits the power to add countries to the list by secondary legislation. On that matter, in the last sentence of paragraph 37, the Joint Committee said:
"For the same reasons, we have the same reservation about the power to add states to the list of 'safe states' by subordinate legislation".
Amendment No. 39A provides in the Bill for something that the Home Secretary said that he intends to do: consult with an appropriate advisory group before adding a new country to the list. In paragraph 40, the Joint Committee states:
"We note, in addition, that clause 92 as amended does not impose any duty on the Secretary of State to consult the proposed independent advisory group, to which he referred in his article, before adding new countries to the list of presumptively safe states. Creating a presumption that a place is safe for asylum-seekers to return to has major human rights implications. The step should not be taken unless the evidence of safety is very clear. Advice from an independent advisory group would be a valuable safeguard for human rights in the face of a power such as that proposed in the amendment. We consider that clause 92(5) should be amended so as to require the Secretary of State to obtain, and have regard to, advice from the independent advisory group before adding states to the list of those which are presumed to be generally safe. We draw this to the attention of each House".
Amendment No. 40 is purely consequential. However, Amendment No. 43A, which I have not mentioned previously, is an important one because it would prevent the removal of claimants to a country of origin while judicial review proceedings are under way. That is dealt with at paragraphs 38 and 39 of the report of the Joint Committee. Paragraph 39 concludes:
"We consider that clause 92 should be amended to provide the protection which the Secretary of State wrongly considers the clause, as amended on re-commitment, provides, and should prevent a person from being removed from the United Kingdom without being allowed an appeal unless an application for judicial review of the Secretary of State's certificate would have the effect of suspending the removal pending the determination of the application for review. We draw this to the attention of each House".
There has been broad criticism of the whole concept of safe country lists. That was expressed at some length in the debate in Committee and, therefore, I do not intend to repeat it now. That criticism comes not only from the Joint Committee but also, as has been pointed out, from the UN High Commission for Refugees and the European Union Select Committee of your Lordships' House.
We believe that Clause 92 is a deeply unsatisfactory clause because of its inclusion of a safe list of countries but also, perhaps more importantly still, because in its

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present form it excludes any right of appeal in cases of asylum applications or ECHR applications. It has to be said that a significant proportion of appeals succeed. I understand that appeals following refusals of asylum succeed in some 17 per cent of cases. That is about one in five. It appears to us, therefore, that by excluding a right of appeal in cases which the Secretary of State prejudges as being manifestly unfounded, there is a real and genuine risk that a miscarriage of justice may occur and that someone may be returned to a country where there is a threat to their life or their liberty. I beg to move.
Lord Archer of Sandwell: My Lords, I can be perhaps uncharacteristically brief in this intervention for two reasons: first, because the objections to subsection (2) have already been explained by the noble Lord, Lord Goodhart, with his usual clarity and, secondly, because these issues were discussed at some length in Committee. I am grateful to all noble Lords who participated in that debate.
If the Bill is unamended, a whole category of decisions relating to the safety, and even the lives, of human beings will be taken by a member of the executive without the possibility of an appeal to the judiciary. That deprivation of justice will be triggered by a certificate that the application is "clearly unfounded". That certificate will lie wholly in the judgment of the executive against whom the appeal is being pursued. One party to the appeal will certify that the other party should not be permitted to present his case.
The Bill appears, on the face of it at least, to say that the decision of the executive should be taken by the Home Secretary, as it would be, if, for example, this were an application by the security services to intercept communications. However, during the debate in Committee it emerged that the decision is to be taken by a Home Office official whose name will not even appear on the certificate. Ministerial infallibility is a doctrine which forms no part of our constitution. In fact, some clear confirmation that that is factually accurate was given during the debate. Official infallibility is at an even further remove from what we understood to be the effect of our constitution. We were assured that the official would be given some training, as though we should be pleasantly surprised to learn that the person who decided the matter would not be someone who had been called in to repair the plumbing.
When my noble and learned friend Lord Falconer of Thoroton replied to the debate, his argument was clear and simple; namely, that that infringement would be perpetrated only where the application was clearly unfounded. If the application was clearly unfounded, no injustice was done by precluding an appeal. When it was pointed out that the purpose of the whole proceeding was to resolve the question whether an application was unfounded, my noble and learned friend replied that the courts decided such questions all the time. Of course, they do—courts are instruments of the judiciary; that is what they do. Part of their function is to monitor the executive. That is not the
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function of the executive itself. It is fundamental to natural justice that one party to a dispute should not adjudicate on whether the other party has an arguable case.
It is self-evident that what is manifestly unfounded is the Government's argument. However, we are not analysing the logic of an argument, we are discussing human lives. We are talking of torture, persecution and murder. I am sure that our grandchildren will be astonished that we could ever have had this debate and that the matter could ever have been in doubt.
As the noble Lord, Lord Goodhart, said, the Government have now introduced a further reflection relating to the white list. He referred to the unusually severe strictures of the Joint Committee on Human Rights. Perhaps when my noble and learned friend replies, he will say whether the Government propose flatly to reject that advice of the Joint Committee on Human Rights or what they will do about it.
My purpose in intervening was to speak to my Amendment No. 35, which is an attempt to produce what I hope will be considered a compromise. However, I am in a difficulty. I have been out of the country. I returned from Australia only this morning. I am most grateful to my noble friend Lord Filkin for having attempted to contact me in Africa by telephone. He succeeded in extracting me from a dinner at the High Commission. But we did not have what either of us would regard as the profound discussion which the situation requires. Although we have had a discussion since with my noble and learned friend, clearly, if we are to achieve any meeting of minds, it will take a little longer than that.
As I shall have no right to explain my reactions by making another intervention, I say now only that if there were any proposal from my noble and learned friend which required reflection and consultation both with my noble friends and other noble Lords who have supported me in these proceedings, and with the non-governmental organisations which have given so generously of their time to advise us, I should probably not press my amendment to a Division today. In that event, if Amendment No. 34 were pressed, I personally would abstain. However, I do not presume to advise any of my noble friends as to the course that they should take.
Lord Clinton-Davis: My Lords, I support in the main the remarks of my noble and learned friend Lord Archer of Sandwell. In so doing, I sympathise with him in coming back from Australia today and having to participate so suddenly in this debate, but there we are, that is the lot of Members of this place.
I hope that my noble and learned friend will take the opportunity to reply to the representations made by the Black Women's Rape Action Project and by Women Against Rape. Their representations must be addressed. This may not be the only place where that could be done. The main point being advanced is that some people are so traumatised by what they have gone through that they are unable to speak about their experiences. When he responds, I hope that my noble

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and learned friend will deal with that point. It is quite impossible for us to expect people to recount such experiences.
I turn to the third point that I wish to pursue. This is a matter that I have raised with my noble and learned friend. He is aware of my intention to make the following suggestion. I am something of a realist, but I am certainly not prepared to play politics at the expense of asylum seekers. In all probability, the Government will succeed in getting through the main points of their Bill. I propose a workable compromise.
There can be no doubting the fact that the Government are faced with an intolerably difficult problem. We must never lose sight of the fact that some asylum seekers, whether or not they have genuine cases, seek refuge in this country because they realise that they can be provided with a better form of life. Some people will prove their case before the appropriate tribunal, but I propose that the Government, whom I mostly support, should pursue their own experiment in a rather limited way.
First, the Government should establish that their experiment is working well to the satisfaction of both Houses of Parliament. Secondly, they should make this effective by way of the affirmative resolution procedure. Thirdly, if Parliament reaches a conclusion that the scheme is not working appropriately, the current scheme, which I call the "existing system", should remain effective.
I hope that my noble and learned friend can reply to my remarks. I have not provided a form of words to which I want to speak in this regard, but I have given an outline of my proposal; in other words, it is highly appropriate that the Government should reconsider the scheme. What they are proposing now is only an experiment. As parliamentarians, we are entitled to assess the value of that experiment at an appropriate time. When he concludes the debate, I hope that my noble and learned friend will reply in the affirmative. I trust that what I have said will commend itself both to him and to the Government.
7.30 p.m.
Lord Mayhew of Twysden: My Lords, there is a problem with the suggestion just made so eloquently by the noble Lord, Lord Clinton-Davis. He described what the Government currently propose in the Bill as an "experiment". However, I see nothing in the legislation to suggest that such measures are intended to be only an experiment; indeed, they will stay on the statute book once they have been passed, as tough and illiberal measures tend to do—
Lord Clinton-Davis: My Lords, there is another possibility here. We still have Third Reading, and one can table amendments in this place at that stage of a Bill. I am rather inclined to hope that my noble and learned friend will bring forward appropriate amendments along the lines that I suggest at that time.
Lord Mayhew of Twysden: My Lords, now, if a may say so without being offensive, the noble Lord is talking. We very much hope that the Government will bring forward amendments, perhaps substantial amendments, on Third Reading. However, I have one further comment to make about the noble Lord's suggestion regarding how we might view the progress of this experiment; that is, if it is one. How does one assess the progress of an experiment when it consists of denying someone the right to appeal within country, and saying to him, "You can appeal against a perceived injustice from the country to which you have been returned"—or, alternatively, to some other country assessed by the Government as being safe?
We have received copious and very helpful briefings from interested bodies, for which I, too, express my gratitude. It comes down to the fact that the Government are denying people the right to assemble and receive advice upon their appeal within this country in circumstances that everyone who knows about these matters must realise will impose upon them a great disadvantage. There will be no means of assessing whether or not this is proving to be a satisfactory experiment to anyone except the Government. So that proposal falls at the first fence.
I both endorse and adopt the argument of the Select Committee, which is surely very compelling. I propose to support Amendment No. 34 if it is taken to a Division. However, in saying that, I do not wish in the slightest degree to discourage the Government from reflecting hard upon what has been said by the noble and learned Lord, Lord Archer of Sandwell, and upon the suggestion just put by the noble Lord, Lord Clinton-Davis. They must return to the matter on Third Reading. Perhaps it will encourage them to do so if this amendment is pressed and the vote goes against them, though no doubt they will be able to steamroller it.
Lord Lester of Herne Hill: My Lords, not only has the Joint Committee on Human Rights twice made its position plain—first in its 17th Report of 17th June, and, much more recently, in its 21st Report—but we have now also heard from two very distinguished noble and learned Lords, former Law Officers of the Crown. Having moved from his responsibilities as regards the Millennium Dome, the noble and learned Lord, Lord Falconer, now finds himself faced with a provision from his department which, quite apart from the European Convention on Human Rights and the refugee convention points, seems to me to be inconsistent with basic constitutional principles about the separation of powers—the argument that it is the function of courts to decide whether one has a claim, not Ministers against whom the claim is brought, and the other constitutional principle about the effective protection of the rule of law.
I should like to add a few remarks to the speeches that have already been made. It would be both unnecessary and impertinent to repeat any of those arguments, but I have one further comment to make. I declare an interest here as the spouse of a special adjudicator and a former chair of the European Roma

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Rights Centre. Quite apart from the fact that this provision flouts principles of British constitutional law and of international human rights law, it will not work in practice. It will not work in practice because whatever the Minister may certify will be subject to judicial review. If it is subject to judicial review, we should examine the record of our independent courts in dealing with such matters. In a judgment delivered only last week—on 17th October—by the House of Lords in the Thangarasa case, the noble and learned Lords, Lord Bingham of Cornhill and Lord Hope of Craighead, emphasised in an asylum context what is already well known; that is, that the judges will give most anxious scrutiny by way of judicial review to these matters and that they regard the possibility of challenge on human rights grounds as being essential under the European Convention on Human Rights. The noble and learned Lord, Lord Hope of Craighead, said as much.
Let us imagine that a future Home Secretary—or the present Home Secretary—certifies that he believes that there is nothing in a claim on human rights or refugee convention grounds. That would inevitably be subject to judicial review, which would hold up the works and lead to further delay and a great deal of litigation in that case.
The safe country list will also lead to litigation. We should remember that including Pakistan, as the previous government did, in a previous safe list was held by the House of Lords to be incompatible with the refugee convention. All of the refugee convention and Human Rights Act points will be taken and Sections 3 and 6 of the Human Rights Act will be relied on. That will be great for members of my profession but not for the Home Office or asylum seekers; it would be an utterly pointless thing to do. I just do not believe that the arrangement will work in practice. It would be much better to leave the matter to the special adjudicators to decide, as judges, whether they consider a human rights claim or a refugee convention claim to be manifestly ill-founded; that is what judges do all of the time. They are specially trained at public expense in ways in which to determine such matters under the refugee convention and the human rights convention. They are better judges as judges than is the Home Secretary, who is party in his own cause. On practical grounds as well as on international human rights grounds, what I have said indicates that the arrangement will not work.
Finally—I hate to be a Cassandra—if the arrangement ever went to the European Court of Human Rights, I very much doubt, if it were applied as envisaged, whether it would pass muster in Strasbourg. I shall give a recent example that will serve for all. In Conca v Belgium, which was decided as recently as 5th February of this year, the Strasbourg court struck down a Belgian attempt to fetter the appeal rights of asylum seekers. Roma rights were also involved: the case was about the Roma coming into Belgium. The European Court struck that down because, among other reasons, there were no effective
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remedies under Belgian law for asylum seekers by way of appeal. They said that that clearly breached Article 13 of the European Convention.
The Home Office will lose before either the English courts or the European Court of Human Rights. In any event, the arrangement appears not to be in the wider public interest.
7.45 p.m.
Lord Judd: My Lords, I rise with some trepidation in this debate, which so far has been exclusively the preserve of highly experienced and distinguished members of the legal profession. I cannot claim to be remotely close to the legal profession. I am one of those ordinary citizens who looks to the legal profession to sort out the law and to handle it as it should be handled. I approach this issue from the standpoint of the ordinary citizen.
I say at the outset that if my noble and learned friend Lord Archer can make a case such as that which he made this evening, after an exhausting week on parliamentary business in Africa and Australia—and he flew back overnight—I should regard myself as being extremely fortunate, if need ever arose, to be one of his clients.
I turn to the amendment. As an ordinary citizen and one who has had the good fortune to work most of my life in the sphere of humanitarian activity—that is very close to the issues that are before us—what concerns me is: what is asylum about? We have drifted a long way. Asylum is about the rights of individuals. If anyone has a case for asylum, it is necessary to ensure that every possible legal step has been taken to ensure that justice is done. "White lists" do not lend themselves to the fulfilment of that individual right or to a concern with the individual. The curbing of appeals certainly does not lend itself to that right of the individual.
We know that the Government have a huge problem. We are all practical politicians in this place and we know that there is currently a massive problem with the number of cases. However, in the long run, the way in which we will secure an enduring, sound immigration policy is when it becomes transparently clear—I refer to the old adage of justice not only being done but of being seen to be done—that if a person has a case for asylum it is upheld, and if they do not, it is not. If that message becomes clear over time, that would be the firmest possible way in which to enable the outside world to see the realities in this regard.
To start introducing short cuts and curbing what has been regarded as the procedures that are necessary for natural justice to manage numbers cannot be justified in the context of a commitment to justice. My noble friend Lord Clinton-Davis and I have been together in and outside Parliament for a lifetime; we have done many things and had many good experiences together. He said that, as a practical

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politician, he wants to look at the realities and to think of a way out of this impasse. That involves—here I have a certain sympathy with the comments of the noble and learned Lord, Lord Mayhew—a very big compromise. I will need firm convincing that that will not unacceptably damage the cause of justice.
Lord Clinton-Davis: My Lords, I want to make my position clear to my noble friend if I can. I wish that I did not have to put forward a compromise. What I have done is not right in the short term. Nevertheless, if one faces reality, the Government will come back with the Bill. I want to mitigate the circumstances in which a government will proceed. I want to ensure that ultimately we can have a workable compromise; that is all.
Lord Judd: My Lords, I am grateful to my noble friend for that clarification. That will be a very serious compromise, at which we shall have to look very closely. If the Government consider taking the road that my noble friend suggested, I urge my noble friends on the Front Bench to appreciate that this is not a matter of fudging or finding a formula of words, which can mean one thing to one set of people and another thing to another set of people and enable people to go home with a less troubled conscience than they might otherwise do; it must be a tough and convincing position that goes as far as possible to preserve what should be justice. But I do not see how any arrangement in that context can possibly be fully justified in terms of a commitment to justice. It may be the lesser of two evils, but it will certainly be nothing more than that, and I believe that we should be very clear on the matter.
I conclude by saying that I hope that at the centre of this issue we shall remember what asylum is about and what those who pioneered the concept of asylum and the legislation to support it were fighting to achieve. They had a vision of a society in which, if a person was endangered in the way that my noble and learned friend Lord Archer of Sandwell described so well earlier in our deliberations—that is, of a decent, civilised and democratic country such as our own—he could be certain that, through the legal system, he would have every opportunity to receive what he was entitled to in a way that we in this country would express as our own aspiration.
Therefore, I urge my noble friends on the Front Bench to understand that we are in a very grave impasse at present. We are jeopardising the concept of the commitment to asylum not only in rhetoric but in meaningful, judicial ways as a result of how we operate the whole system. I urge my noble friends to take these arguments very seriously tonight.
The Lord Bishop of Oxford: My Lords, I rise briefly to support the main thrust of all these amendments and, in particular, Amendment No. 34. The arguments have been made on this and other occasions most eloquently, and I find them compelling. For me, the
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nub of the issue is the question that came to my mind when I once drove past a Quaker church. There was a wonderful notice outside, which said:
"On essentials, unity. On inessentials, diversity. In all things, charity".
We can all agree on, "In all things, charity"; but the question in my mind is: who decides what is essential and what is inessential? If we are making a distinction between what is well founded and what is clearly unfounded, as the noble and learned Lord, Lord Archer, put it so powerfully, the answer according to the Bill as it now stands is highly unsatisfactory and a denial of natural justice.
Lord Avebury: My Lords, I agree with the right reverend Prelate that the question is: who decides? In the past, when the Home Office has certified cases, there has been a right of appeal to an adjudicator. That right will be taken away. We can look at the effects of that by scrutinising what happened to certified cases in the past. Therefore, we do not need the experiment that the noble Lord, Lord Clinton-Davis, suggested; we can look at the past record of certified cases on appeal.
I hope that the noble and learned Lord, Lord Falconer, received the note that I sent him this morning, in which the Refugee Legal Centre gave a summary of the cases that had passed through Oakington with which it had dealt. I want to ask the Minister whether it is intended that in future all certified cases will be processed through Oakington. I have one or two points to make as regards the suitability of Oakington for that purpose, as raised with me by the Refugee Legal Centre and which I pass on to the noble and learned Lord for his consideration.
Perhaps I may tell your Lordships about the experience of the Refugee Legal Centre in relation to the certified cases that have been through Oakington. I shall give, first, the figures for the Czech Republic, as that is one country which is supposed to be perfectly safe for everyone and is supposed not to generate any legitimate applications for asylum. Of the certified cases heard between 1st January and 8th October, 14 per cent were successful on appeal. Of the total number of cases taken through Oakington, as many as 20.7 per cent were successful when taken to appeal by the Refugee Legal Centre. Such cases, which will not have a right of appeal because they will be certified under this clause, will have lost the right which they should have enjoyed and which manifestly, according to the results, they deserve to have. They will not have any opportunity whatever to obtain access to a tribunal for an appeal to be heard.
As I said, all such cases will be processed through Oakington, and the Refugee Legal Centre has raised a series of objections to that process. I do not propose to weary your Lordships with them this evening. I simply say that they come under several headings. First, the centre says that there is a poor quality of decision-making in Oakington cases, and it gives a number of examples. Secondly, it points out that there is insufficient time for representations to be considered because the fast-track procedure at Oakington means

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that an asylum claim is determined within seven to 10 days. It suggests that that is not appropriate for the processing of claims which are likely to be certified as clearly unfounded and which will therefore have no in-country right of appeal. Therefore, our experience tells us that what we are doing is wrong and that we should not accept this clause.
Lord Hylton: My Lords, there is great concern that Clause 92 and following clauses which restrict rights of appeal bear even more harshly on women than they do on men. Like the noble Lord, Lord Clinton-Davis, I have received the briefing on bright yellow paper. I hope that the Government have also received it; if not, they can easily be supplied with it.
I want to draw attention to only two points in that paper. The organisations concerned state:
"Estimates suggest that 50 per cent of women seeking asylum in Britain are rape survivors, yet rape by soldiers and police, sometimes over many months in detention, is the least recognized form of torture and persecution".
I have no exact knowledge of whether that percentage is correct. But I believe it is certain that there is some percentage of rape victims among women asylum applicants. The organisations go on to state that,
"rape is usually the last evidence of torture to emerge and therefore rape victims are more likely to be deported unless they are able to appeal".
The only other point that I want to highlight is that the organisations state that,
"it is even more shocking that this Clause would apply retroactively to appeals already lodged".
Again, I am not sufficiently legally informed to know whether they are correct in making that claim of retrospection. However, if it is justified, it is a most serious and wrong matter. Therefore, in general, I support all previous speakers and the amendments that we are considering.
Baroness Whitaker: My Lords, in supporting Amendments Nos. 38A and 38B, first I want to thank my noble friend the Minister for both his letter of yesterday and his rapid response to the latest report of the Joint Committee on Human Rights, of which I am a member. I regret that my absence on committee business prevented my taking part in the Committee stage of the Bill.
I fully understand the Government's need—indeed, the national need—to streamline and speed up the process of dealing with asylum seekers, but I am concerned that the assumption that the accession states have already implemented the acquis communautaire in respect of human rights, in the case of their large Roma populations over a year ahead of the accession date, is premature.
I do not refer only to serious discrimination, which is well known and widespread, but also to information provided by the Immigration Advisory Service on the denial of a wide range of rights, which if substantiated would probably amount to persecution by the state, not only in Slovakia and the Czech Republic. For instance, we are told that Roma who are born in and reside in Slovenia are also denied citizenship,
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passports, access to health, education and pensions as well as being subject to violent assaults unprotected by the police. I believe that no minority-related priorities even appear in the most recent accession partnership document between the Slovenian Government and the European Commission.
Therefore, can my noble friend give the House more evidence that on Royal Assent states which are listed in the amendments and in the whole of Section 4 are safe enough to return Rorna asylum seekers?
8 p.m.
Lord Brooke of Sutton Mandeville: My Lords, I rise briefly to thank the Joint Select Committee for its further report. Being a non-lawyer like the noble Lord, Lord Judd, I did not take part in the earlier debate on these matters. The report of the Joint Select Committee is so pellucidly clear that although a non-lawyer I was able to follow all the relevant issues. In that regard I include footnote 41, to which the noble Lord, Lord Goodhart, referred.
Unlike Mr Asquith's well known lucidity of style of which Mr Balfour remarked that it was a positive disadvantage when he had nothing particular to say, the Joint Select Committee has a great deal to say, and I shall be happy to follow my noble and learned friend Lord Mayhew in supporting the lead amendment moved by the noble Lord, Lord Goodhart, if it is put to the vote.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, I endorse two points which have been made. First, I thoroughly agree with the comments of the noble Lord, Lord Judd. If the quality of speech made by the noble and learned Lord, Lord Archer, after a flight to Australia is that high, let us imagine what it would have been like had he not just come from that flight. Secondly, this is an important debate. Although there are legal aspects to it and issues of statutory construction and principle, ultimately we are talking of people's lives and one has to be incredibly careful in the way in which such issues are addressed.
There is an issue at the heart of this debate. It is said that there should not be no in-country right of appeal simply on the certification of the Home Secretary. That point is used to attack the original draft of what was Clause 82 and is now Clause 92. It is also used to attack the safe countries list added by an amendment earlier this month in this place.
I shall describe our case in outline. That is not with a view to going back on issues which were debated fully on recommitment, but so that there is a proper understanding of the position. As my noble friends Lord Clinton-Davies and Lord Judd rightly said, there is a real problem at present. A large number of people are making applications. The problem to which that gives rise is that money is spent on dealing with such applications, and resources have to be devoted to dealing with them while claims are being made. I suspect few noble Lords would dispute that significant numbers of those claims are unfounded either in

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asylum terms or human rights terms insofar as there is a difference. For example, applicants will and have said words to the effect, "I am making a claim because my family told me to". Despite seeking advice from both medical and legal advisers provided to them, the application becomes no more detailed than that.
Are those sorts of claims ones which should go through a detailed process involving a number of layers, or are there claims which can be safely certified as manifestly unfounded? We believe that there are claims which can be safely certified as manifestly or clearly unfounded. What will the process involve? It will involve the relevant applicants having access to medical and legal advice and an official then considering the claim. If the official concludes that the claim fails, and that it is clearly unfounded, a second pair of eyes will then look at it.
After the certificate of "clearly unfounded" is issued, as the noble Lord, Lord Lester of Herne Hill, made clear, it would be open to the applicant to make an application for judicial review. The noble Lord referred to the Thangarasa case. Paragraph 59 from the speech of the noble and learned Lord, Lord Hope of Craighead, echoes the point made by the noble Lord:
"The European Court has accepted that the process of judicial review, under which decisions of this kind are indeed given the most anxious scrutiny, is capable of providing an effective remedy… In my opinion, the scrutiny which the courts below gave to the decisions which are under challenge in these appeals fully measures up to this standard, and I agree with them as to the results".
As I understand it, the result in that case was that the noble and learned Lords upheld the findings or the certificate of the Home Secretary that the case was manifestly unfounded.
Therefore, we have a system which ensures individual application of a mind to the individual case. It is not a question of whole tranches of applications being put to one side and treated as clearly unfounded. Each case must be looked at on its merits. A second pair of eyes looks at it administratively. There is a process by which the courts can intervene on application if there is a question that the claim is not clearly unfounded.
It is the Government's intention that that process is safe. It addresses the problem in a way which provides sensible and appropriate safeguards. It is also important to emphasise that where an application for judicial review has been made, the practice is not to remove the person from this country until that application has been resolved—frequently, as noble Lords will know, with the application for permission being rejected. It is only once it has been resolved—
The Lord Bishop of Oxford: My Lords, I thank the Minister for giving way. I am grateful to him for his helpful and clear explanation. Will applicants be told about the right of judicial review? If they are and a good number avail themselves of it, will we not have
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the situation so powerfully described by the noble Lord, Lord Lester; that is, a much longer and more expensive process?
Lord Falconer of Thoroton: My Lords, as regards the first point, they will have access, for example, in the Oakington facility, to legal advice, which will tell them of their rights in relation to judicial review. The question of whether or not the prognostications of the noble Lord, Lord Lester, are correct depends on two factors. First, will the courts by and large uphold the "clearly unfounded" certificates by, for example, refusing applications for permission. Secondly, how long will they take to deal with them? We believe that if the courts become satisfied that there is a reliable process of certification, although it is a matter for the courts to determine as they deal with their business, it is extraordinarily unlikely that the system described by the noble Lord will come to pass.
Lord Judd: My Lords, I am grateful to my noble and learned friend for giving way in the context of what is—I agree with the right reverend Prelate—a full explanation. However, perhaps he could make one clarification. A moment ago he used the word "administratively". How can we guarantee that the prevailing culture in which administrative decisions will be taken will not be one which is about managing and controlling the numbers rather than one which states, "If anyone here is entitled to asylum, we are jolly well certain they will get it"?
Lord Falconer of Thoroton: My Lords, to answer the noble Lord: first, because the decision is one which has to be taken quasi-judicially; and secondly, the courts providing, as the noble Lord, Lord Lester, rightly identified, an effective remedy, are there to ensure that they do that. They are not giving effect to any sort of political direction but exercising a quasi-judicial function in which they have to evaluate the merits of each individual claim.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. Am I not right—I refer to the evidence given by the Home Office in answer to the JCHR Select Committee, reported in our 21st report—that at the moment there is a concordat between the Government and the High Court whereby a person who is detained and subject to removal, and who applies for judicial review, is given only three working days to lodge an application with the High Court? That is the first question I should like to explore; whether this is an effective remedy. If so, is that satisfactory?
The second question I ask the noble and learned Lord is why on earth, if we have this serious problem, can we not have a simple procedure whereby the Home Office goes to the adjudicator, who is the expert judge, on a strike-out procedure and says, "This is manifestly ill-founded. Will you decide that straightaway as a preliminary issue?", rather than bringing in High Court judges and the complexity and expense of judicial review, with appeals to the House of Lords and

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so on? Why can there not be a speedy and effective remedy before the specially trained and appointed adjudicator on a strike-out, where the Home Office puts its case, says that it is manifestly ill-founded and the judge decides?
Lord Falconer of Thoroton: My Lords, as to the first question about the concordat, perhaps I may get details before I venture into an answer.
As to the noble Lord's second question, why not have a procedure whereby the adjudicator decides the question, that in fact is reflected in the amendment of my noble and learned friend Lord Archer. The answer is that the certificate stating that the case is clearly unfounded should be given at the first stage of the procedure; namely, when the Home Secretary or the officials on his behalf look at the matter and form a view. Once they form a view that the claim is manifestly unfounded, which is the first stage in the existing procedure, that should be sufficient. We think that judicial review in the High Court is the most appropriate way to ensure that that is properly dealt with.
The noble Lord asks whether we should add another level in relation to that adjudicator. Why? We have a perfectly reasonable system, one that the House of Lords sitting in a judicial capacity have described as an effective remedy. It allows the officials dealing with the claim at first instance to decide and leaves the normal structure of law, which is judicial review, to determine whether it operates in practice. Do not invent a new procedure. That is why we have done it that way.
Lord Mayhew of Twysden: My Lords, it was a policy decision on the part of Ministers—a right, albeit delayed, one—that it was not safe to send Zimbabweans back to Zimbabwe. In what respect will the procedure which the noble and learned Lord has just outlined differ from the procedure operating in those cases where officials in the Home Office said that the anxieties of the asylum seekers were manifestly unfounded?
Lord Falconer of Thoroton: My Lords, I do not want to talk about individual cases because I do not know enough about them. If there is a case where there is a certificate that purports to suggest that the asylum seeker's claim is "clearly unfounded", and it can be demonstrated that there is plainly an argument that it is not, the normal rules of judicial review would provide a remedy.
Without wishing to comment on a particular country, surely if the position is as clear and straightforward as the noble and learned Lord, Lord Mayhew, suggests, it would demonstrably have been a perverse conclusion.
Lord Mayhew of Twysden: My Lords, perhaps I put my question a little obscurely. The noble and learned Lord the Minister was at pains to say that there will be two pairs of eyes which will look at this
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administratively. Were there two pairs of eyes or only one pair of eyes in the case of the Zimbabweans and similar cases at the same time? Is it a new procedure?
Lord Falconer of Thoroton: My Lords, what I am seeking to define for the noble and learned Lord is the framework within which a plain error in relation to that can be corrected.
IND policy is not to remove once the applicant has indicated an intention to apply for judicial review. As soon as that intention has been indicated, the applicant is given three days to lodge his application. Once the application is lodged removal is deferred until permission is either granted, in which case it will be deferred for longer, or refused, in which case protection against removal is granted. So, the critical point in answer to the first question of the noble Lord is that the three days apply from the time that the intention to apply for judicial review is raised.
8.15 p.m.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord. Am I not right in saying that the central question that an asylum seeker has to establish is that he or she has a well-founded fear of persecution? That is a question of fact depending on complex evidence that a special adjudicator, such as my wife, listens to for hours and then spends a day writing a judgment on.
Can the noble and learned Lord explain how Home Office officials can be confident of the answer of whether or not there is a well-founded fear of persecution for Roma in the Czech Republic in a particular case and certify that the adjudicator cannot deal with the matter? How can they be so certain, except in the most rare and exceptional cases? If they cannot be so certain, why can they not simply go to the adjudicator, who is the judge qualified to decide those questions independently, for a judicial determination—on a speedy procedure if necessary?
Lord Falconer of Thoroton: My Lords, the process is about identifying those cases which are clearly unfounded, not those where there is an argument both ways and one has to weigh up which way the answer probably falls. It is the ones where there is clearly an unfounded claim. If one is trying to stop a long process continuing, the best place at which to determine whether a claim is clearly unfounded is right at the beginning after the first consideration of the claim. That is the approach that we have taken. We believe it is an approach which is safe and sensible because of judicial review providing an effective remedy to ensure that the right course is taken.
Lord Archer of Sandwell: My Lords, I am grateful to my noble and learned friend for giving way. At the risk of being tiresome, can he explain how, if the purpose of all these proposals is to expedite the processing of asylum claims, that will be promoted by encouraging a plethora of applications for judicial review?
Lord Falconer of Thoroton: My Lords, we believe that, if the position operates properly so that the Home

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Secretary is only certifying those claims which are clearly unfounded, then the market in judicial review will inevitably go away. What will happen is that the courts will say, "Permission refused", because it will become obvious that the way the system is operated is one in which the IND is getting the answer right. If it is not getting the answers right, that will emerge in the course of the judicial reviews.
I go on in the analysis to deal with the list of countries that have been referred to; namely, those on the face of the Bill. There is a clear rationale for listing the 10 countries in subsection (4). These are the 10 countries which are in the first wave of accession states due to join the European Union in 2004. They have met the stringent criteria that have been laid down by the European Union. At last week's Justice and Home Affairs Council in Luxembourg all member states agreed to a declaration stating that there should be a presumption that asylum claims from these countries would be manifestly unfounded.
That is a clear European Union view, as noble Lords will know, covering a whole range of complexion of government. Given the clear EU view that these 10 countries are generally safe—
Earl Russell: My Lords, can the noble and learned Lord tell us how such presumption is to be reconciled with the position of the UN convention that claims are to be considered without discrimination on the ground of nationality?
Lord Falconer of Thoroton: My Lords, an individual claim must first be considered on its merits. Let us remember that, even in claims from the 10 accession countries, each applicant must have his claim considered. If that claim is dismissed, the official must presume that it is clearly unfounded unless he thinks that it is not. So every claim from whatever country is entitled to individual consideration on its merits.
Turning to Slovakia and the Czech Republic, a considerable amount of material supports the inclusion of Slovakia in the list. First, there are court judgments in the Horvath case heard by the Court of Appeal in 1999 and the House of Lords in 2000. The Immigration Appeal Tribunal determination that the Slovakian authorities are able and willing to provide protection to the required standard and that Roma, as a class, are not exempt from that protection was upheld. More recently, in the July 2002 IAT determination in the case of Gujda, it was found that there was:
"sufficiency of protection in Slovakia, not simply against criminal elements such as skinheads, but also where rogue elements of the police themselves engage in acts of wanton violence… The evidence does not show unwillingness or inability of the state to protect… Roma".
Those are powerful and relevant judgments supporting the view that the Slovak Republic is not a place where inadequate protection is available, but the evidence does not stop there. In its regular report, in October 2002 the European Commission confirmed
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that the country continues to fulfil the Copenhagen political criteria, which require that it must have achieved
"stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities".
In other words—to pick up the point made by my noble friend Lady Whitaker—those countries would not have reached this point as accession states without satisfying those stringent requirements about democracy, the rule of law and protection of human rights.
According to the United States' Department of State report for 2001, the Slovak Government generally respects the human rights of its citizens. Its constitution prohibits torture and other cruel, inhumane or degrading treatment or punishment. The Interior Minister has recently introduced several new measures to prevent police brutality—over and above the provisions in the penal code that make the abuse of coercive measures by police officers a criminal offence. The judiciary is independent, impartial and separate from other branches of government. The Slovak Republic has ratified the European Convention on Human Rights. There is an ombudsman. The constitution contains an anti-discrimination clause guaranteeing human rights and freedoms regardless, inter alia, of race, nationality or ethnic origin.
I could go on, but those are all concrete facts that give an objective picture of conditions in the Slovak Republic. Of course, it will always be possible to point to unsavoury incidents. No one suggests that the Slovak Republic—or any other country on the planet, for that matter—is 100 per cent perfect. That is not the issue. The issue is whether the Slovak Republic, along with the other nine front-running accession states, is a country from which very few asylum and human rights claims will be well founded. In our view, it is such a country.
I turn to the Czech Republic. Human rights groups operate without government restriction and government are generally co-operative and responsive to their view. There is a commission for human rights and the office of the ombudsman was created in December 2000. A government-sponsored council for nationalities advises the cabinet on minority affairs. As I cited in Committee, in the case of Hervak,
"The position in the Czech Republic is such that it will, in our view, be impossible for a Roma, or anyone who has suffered as a result of discrimination against Roma, to establish a well-founded fear of persecution".
As I made clear on recommitment, we do not say that it is impossible to make a claim from such countries; we say that it is unlikely that such a claim will be made. However, irrespective of whether that is right or wrong, each claim is considered on its merits by the Immigration and Nationality Directorate. If it is rejected, the presumption is then that it is clearly unfounded unless the Secretary of State, through his officials, considers that it is not.
Lord Avebury: My Lords, does the Minister agree that the United Nations Committee Against Torture found that:
"the pattern of violent abuse of Roma at the hands of both police officers and private actors persisted and the authorities often failed to investigate and prosecute such crimes effectively"?
Lord Falconer of Thoroton: My Lords, if the noble Lord says so, that is plainly the case, but the critical question concerns whether the process, to which the noble Lord wants access to be given irrespective of whether the claim is clearly objectively unfounded, has made the pronouncements to which I have referred about claims from the Czech Republic—and, although I assume that his remarks do not refer to it, to Slovakia. Of course, no country is perfect, but the tribunals have said that in such cases it is difficult to make a claim. That is reflected in the fact that in 2002 only 10 per cent of appeals from accession country applications have succeeded. That confirms the idea that it is difficult to make a claim from those countries.
Perhaps I may deal quickly with the individual amendments. Amendment No. 34 would remove the "clearly unfounded" provision and, for obvious reasons, we reject that. Amendments Nos. 37 and 38 disable the list of safe countries by ensuring that it could not be used where a person makes a human rights claim. The noble Lord, Lord Goodhart, made it plain that that is a wrecking amendment, so I need not deal with it further. I have referred to Amendment No. 35, tabled by the noble and learned Lord, Lord Archer, providing for referral to an adjudicator. I have dealt with that. Amendments Nos. 38 and 39 would delete Cyprus and the Slovak Republic, but I have dealt with the Czech and Slovak Republics, because they were the ones raised.
Amendments Nos. 39 and 40 concern the order-making powers to add or subtract from the list of countries. We debated that last Thursday. Amendment No. 39 would omit the order-making power completely—we have discussed that and do not need to do so again. Amendment No. 39A provides that a state will not be added to the list unless the Secretary of State has consulted an independent advisory panel. We are considering whether it would be appropriate to include in the Bill the provision to set up an advisory panel whose functions would be to audit and advise on the country information that is used to assess asylum applications. Whether or not the panel is included in this Bill, we have agreed that it should be established. No country would be added to the list without the panel having first examined the relevant country information reports.
Amendment No. 40 would allow any of the 10 countries to be removed by order. Again, we have already discussed that point and I do not think that I need to deal with it again. Amendment No. 43A deals with judicial review proceedings, with which I have already dealt.
Perhaps I may deal with one important point that has influenced the Joint Committee on Human Rights. In its report, it refers to a previous report in which it makes it clear that it does not like the idea of the
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"clearly unfounded" approach. Its new report deals with the changes made, but proceeds on the basis that the effect of the amendment is to remove not just the in-country appeal but the out-of-country appeal. Although that is not its main argument, that informs its first, second and third points. Its conclusion is wrong in that respect, and perhaps I may set out why.
The wording of Clause 92(9) means that the general bar in Clause 93 on making an appeal from outside the United Kingdom on asylum or human rights grounds does not apply where the person has been issued a certificate under Clause 92. Nor, as some may fear, does Clause 92(2) prevent any appeal being made on asylum or human rights grounds. It prevents an appeal being made "in reliance on Clause 90(4)". That subsection enables an in-country appeal right to be made on asylum or human rights grounds, so saying that a person cannot appeal in reliance on Clause 90(4) prevents an in-country appeal only, not any appeal. All that ensures that a person is not prevented from appealing from outside the United Kingdom, if a certificate issued under Clause 92 has removed their in-country appeal right.
8.30 p.m.
Lord Lester of Herne Hill: My Lords, will the Minister explain the effect of Clause 92(2) on claims of breach of Section 6 of the Human Rights Act 1998? As I read the clause, even though the Minister is under a duty imposed by Section 6 of the Human Rights Act to act in a way that is compatible with human rights, the Minister can, through his officials, decide that a claim of breach, which would normally be brought under the Human Rights Act, cannot be brought. Is that right?
Lord Falconer of Thoroton: My Lords, I am dealing with the point that was made in the Joint Committee's report. It is important that we focus on that.
Lord Lester of Herne Hill: My Lords, I follow that. I was not dealing with the out-of-country or in-country point.
Lord Falconer of Thoroton: My Lords, I shall deal with the other point in correspondence. The critical point is the one that informs this report, which suggests that any right of appeal was abrogated. That is not right. That is not the only point that was made, but it informs the first three points.
The fourth point that the committee makes—from paragraph 35 onwards—is that it does not like the idea of safe country lists because, it says, no country is completely safe. We do not dispute that, but we follow the declaration made by all current members that there should be a presumption that, if a claim is made from one of the accession states, it is clearly unfounded.
We listened carefully to the points made and anxieties expressed. Plainly, those views are genuinely held. Our "clearly unfounded" provisions are a vital part of our package. We listened particularly carefully to my noble friend Lord Clinton-Davis who spoke

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with realism. I am sure that we will continue with the provisions, subject to the agreement of Parliament at Third Reading, but, before that stage, we will consider carefully the points that have been made.
Lord Avebury: My Lords, the Minister said nothing about the Refugee Legal Centre information that I sent him, which included details of the percentage of cases that were successful on appeal, after certification. Should I take it that he has no answer to those points?
Lord Falconer of Thoroton: My Lords, I put before the House the basis of the procedure that we propose to follow. I put before the House the extent to which there are sufficient protections, picking up, in particular, the point made by the noble Lord, Lord Lester of Herne Hill, that judicial review provides an effective remedy. Noble Lords must consider whether the procedure is appropriate.
Lord Clinton-Davis: My Lords, the noble Lord, Lord Hylton, and I raised issues that were, appropriately, put before the House by the Black Women's Rape Action Project and Women Against Rape. Will the Minister have the courtesy to say something about them?
Lord Falconer of Thoroton: My Lords, I apologise to the noble Lords, Lord Hylton and Lord Clinton-Davis, for not dealing with it as I intended to. At Oakington, for example, there are on-site legal representatives and an on-site medical centre. There are case workers who are trained to deal with interviewees who suffer from the sort of trauma referred to in what the noble Lord, Lord Hylton, called the bright yellow briefing.
If the trauma relates to past torture, which is the sort of trauma to which both noble Lords referred, the Medical Foundation for the Care of Victims of Torture can be contacted. The claim would not be decided until we had the views of the foundation, a body for which both noble Lords have the greatest respect. If the foundation indicates that there is any sort of history or risk of the sort to which the noble Lords referred, the case would not be appropriate for the "clearly unfounded" procedure. I apologise again for not dealing with that point before.
Lord Goodhart: My Lords, I am grateful to all noble Lords who spoke. Basically, all have been critical of the Government's stand on the amendments.
I shall start by dealing with two relatively minor matters. One is the interpretation of Clause 92. The Minister said that the Joint Committee on Human Rights had got it wrong by saying that the clause prohibited out-of-country appeals and not just in-country appeals. I cannot comment on that view at this stage, as it would require a detailed analysis of what he said and of the Bill.
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The second point, which is less minor, relates to the "white list" or safe country list. The Minister—understandably, for it would have prolonged an already lengthy debate—did not really challenge the argument of principle that safe country lists were never appropriate. He concentrated on the position of the Czech Republic, Slovakia and the other eight candidate countries on the list. The Minister said that those countries would not have got on to the list if their human rights records had not been satisfactory. I do not find it easy to agree with that.
None of the states has a record so bad that it would not be considered a suitable member of the European Union. However, that is not the same thing as saying that those countries' standards are already up to the level of the existing member states. There are serious concerns about some of the countries. There is a political imperative to get them into the European Union, and it may be that entry into the EU will improve those standards. I am not suggesting for a moment that any of those countries are not suitable members of the European Union, but that is not the same as saying that they are appropriate countries for inclusion on any safe list.
The fundamental issue is whether we should have certificates stating that claims are manifestly unfounded, which would prevent in-country appeal—at least—to an adjudicator. The Minister said that a significant number of asylum claims were unfounded. He thought that no one in the House would disagree with that. I do not disagree; there is no doubt that many claims are unfounded. However, that is not the question: the question is whether those identified by the Home Office as having made manifestly unfounded claims will always be correctly identified. That is a different question.
In such cases, access to judicial review is not the equivalent of a right of appeal. The decision is taken by a government official; it is an executive decision. The Home Office official who makes the decision is not a tribunal and is not subject to the procedural rules that apply to the courts. Such cases require an independent and impartial adjudicator who can review the case on its merits. That, after all, is what happens in cases relating to benefit claims. There is a benefits tribunal, which hears claims made under the social security Acts and can review on its merits the decision of the official in the Department for Work and Pensions who took the decision.
I therefore believe that what is needed is not simply judicial review, but, as a step open to anyone whose asylum claim is dismissed by an official, a chance to take the case to an adjudicator who as an independent and impartial person can review the executive decision to refuse asylum. For that reason, I believe that Clause 92 is deeply unsatisfactory.
I hope that even at this late stage the noble and learned Lord and the Government consider that there are steps that could be taken before Third Reading to improve Clause 92. I was particularly interested in what was said by the noble and learned Lord, Lord Archer of Sandwell. He spoke an enormous amount of

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wisdom and sense. If I were to move to a vote on Amendment No. 34, I would very much like to have him on our side. Clearly, that will not be the case—I do not say that ultimately it will be, but I hope that it will—until all avenues for consideration have been explored.
For that reason, and because we are well past the hour at which one can expect a truly representative vote, it is my intention to ask the leave of the House to withdraw the amendment. However, in view of the wide degree of support it has received from around the House, I hope that it will be possible to bring it back at a more viable time at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned until 9.42 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.42 to 9.42 p.m.]
Lord kingsland Lord kingsland moved Amendment No. 36:
Page 52, line 30, at beginning insert "Subject to subsection (10),"
The noble Lord said: My Lords, Amendments Nos. 36, 41 and 43 fulfil the commitment given by my right honourable friend Mr. Oliver Letwin during Report stage in another place on 11th June. It was as follows:
"there is no question that returning a person to France, Denmark or any EU country, for example, is anything but a perfectly legitimate act for the British state. It runs no risk of compromising that person's life or liberty… I am determined that we should give the Home Secretary the support that he deserves in regard to those provisions that are right and which make it possible to imagine that bilateral agreements will come back into play. However, I intend to preserve our determination to avoid, if we can, compromising improperly the safety of individuals through those subsections that pose a threat to their safety".—[Official Report, Commons, 11/6/02; col. 805.]
The amendments before your Lordships in my name and that of my noble friend seek to implement that aim. As it stands, Clause 92 would allow the Secretary of State to remove to another country an asylum seeker whose claim was certified by the Home Office as being "clearly unfounded" before that asylum seeker could exercise his right of appeal to an adjudicator. The asylum seeker would then have to bring his appeal from abroad.
The amendments seek to ensure that, when the Secretary of State decides to remove such an asylum seeker before that asylum seeker has brought an appeal, the removal may only be to a country which has been certified as safe and from which the asylum seeker has a reasonable opportunity to exercise his appeal rights. I anticipate that there would be relatively few problems, if any, with certifying other EU member states, or even candidates for EU membership, as "safe" countries under the terms of the amendment.
The amendments would, however, allow those asylum seekers whom the Secretary of State proposes to remove to countries which are not safe, or from which they could not reasonably exercise their appeal rights, to have their appeal considered by the judicial authorities in the United Kingdom before removal takes place. Even the Minister will admit that the Home Office occasionally makes mistakes. I am sure that all sides of your Lordships' House will agree that it would be regrettable, indeed, if a mistake could not be rectified simply because an asylum seeker had been returned to a country from which he found himself unable to exercise his right of appeal—a right that even the Home Secretary does not propose to remove altogether.
The noble and learned Lord, Lord Archer of Sandwell, has taken a different approach with his Amendment No. 35, which would give the right of appeal to an adjudicator against a "clearly unfounded" certification by the Secretary of State. As I understand it, such a person would, even under the Government's proposals, be able to bring judicial review proceedings in respect of the certificate. I recognise that appeal and review are two very different things, but none the less there would be a remedy in cases where the Home Office had clearly and unreasonably got things wrong.
Our amendments, on the other hand, seek to ensure that in the case of France, Denmark and other EU member states the Bill can be the basis for the return of the bilateral agreements to which my right honourable friend referred in another place, while also seeking to ensure a measure of safety in respect of countries where a person would be at risk.
It is, indeed, a difficult balancing act. But, in my submission, our amendments present a solution—perhaps not the purest form of solution, but a solution none the less—to the problems which the non-suspensive appeals provisions in the Bill may present in future, while retaining the possibility of swift removal in appropriate cases. I hope that the noble and learned Lord the Minister and others among your Lordships will be able to support the amendments. I beg to move.
9.45 p.m.
Lord Falconer of Thoroton: My Lords, we welcome the fact that these amendments recognise the value of introducing a list of safe countries. As that is common ground between us, and as I spent some considerable time before supper and last week explaining the Government's position on the matter, perhaps I may concentrate on those areas where we differ from what is proposed in the amendments.
The main difference is that they would close the door to the use of non-suspensive appeals in respect of any person who is not to be returned to a country on the safe list. This would limit the scope of the provision unnecessarily. Just as there will be occasions where it is not appropriate to return an applicant to a country which is on the safe list, equally there will be occasions where it is appropriate to certify a claim from an applicant who does not come from such a country.

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It is quite possible for a person from any country to come to the United Kingdom, use the magic word "asylum", and then be unable to provide any information to substantiate their need for protection. I gave examples of that before supper. We need to have scope to continue dealing with clearly unfounded claims, whoever makes them, even if the emphasis may be on claims made by those on the safe country list.
There are also some other differences in these amendments. Whereas the amendments that we made last week are concerned solely with safe countries of origin, the amendments that we are now debating also cover situations where a person is being removed to a third country from which he or she can safely appeal against the refusal. Since it is the number of applicants from safe countries making unfounded asylum claims that is causing the problem, we think it right to focus on that aspect.
That difference in emphasis partly explains another difference; namely, the tests for using the order-making power. We believe that the reference that we have to human rights is to be preferred, because the key issue is whether removal would be a breach of the United Kingdom's obligations under the ECHR. That is not identical to the question of whether a person might have his or her human rights infringed in the country to which we are seeking to remove that person.
I agree that the reference to human rights breaches used in these amendments makes some sense in the context of non-suspensive appeals relating to appeals from third countries. But I argue that it is not appropriate for safe country of origin cases.
Furthermore, in safe country of origin cases, the issue of a person being able to pursue an appeal from abroad does not arise in the same way as it does in a third country appeal case. In safe country cases it will be implicit in the decision to issue a certificate that the country to which the person is to be returned is a safe one. For third country cases, we do not think that creating an order-making power of the type proposed would add value to that which is already in the Bill; namely, subsection (7), which sets out the two conditions of which the Secretary of State must be satisfied if the certification powers in Clause 92 are to be used in such cases. These are: that the person is not a national or a citizen of the country of intended removal; and that there is no reason to believe that the person's ECHR rights would be breached in that country.
The noble Lord, Lord Kingsland, said that it would be unfortunate if an error could not be rectified by a person having an effective overseas appeal. For clearly unfounded certificates, the presence of judicial review provides an effective remedy against any error by the Secretary of State or the IND. I elaborated on that at some length before the House adjourned for dinner.
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As to third country certificates, the Bill already requires that a certificate can be issued only where the Secretary of State is satisfied that a person's ECHR rights will not be breached in the country from which he or she appeals. So that covers both situations.
Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. Would that prevent anyone being sent to a country which is not a member of the Council of Europe and therefore does not apply the European convention in its courts?
Lord Falconer of Thoroton: My Lords, the question would be whether human rights would be infringed—which would be a different question from whether or not the country adhered to the European Convention on Human Rights. I was about to give an example; however, I think it unwise to do so without checking it out first. I do not think that the questions are the same.
Lord Kingsland: My Lords, without rehearsing a substantial part of the debate that took place before the dinner adjournment, I am in some difficulty in dealing satisfactorily with all the apposite points that the noble and learned Lord made.
Perhaps I may be allowed one reflection. The noble and learned Lord made a distinction at one point between the human rights that relate to the decision as to whether or not to send an individual abroad and the human rights that the individual would discover or not discover in the country where he or she was sent.
I am not sure that I understood entirely the Minister's observation. I took him to say that what was crucial to the Home Office—to the Government—was the first measure of human rights, not the second. But since I intend to re-table this amendment at Third Reading, I think I can wait for a further episode from the Minister then. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 to 41 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 42:
Page 53, line 27, at end insert—
"( ) This section does not apply if the evidence adduced in support of the application establishes a reasonable likelihood that the appellant has been tortured in the country to which it is proposed to remove him."
The noble and learned Lord said: My Lords, whatever categories of persecution there may be, I assume that the House agrees that torture is in a separate one. Those who suffer torture are the most vulnerable, the most inhibited from discussing their experience or describing it at an early stage, and the least able to survive further persecution. It is in this area in particular that the record of the Home Office does not inspire a great deal of confidence. I am grateful to the group of NGOs that put out the latest publication under the Immigration Law Practitioners' Association.
I shall refer briefly to three case studies. In the first, a man from Zimbabwe whose parents were beaten and stabbed to death by ZANU, made a claim for refugee status following a campaign of harassment, intimidation and beatings. The Home Office certified it as being manifestly unfounded. The adjudicator indicated that the claim was clearly not manifestly unfounded. He allowed the appeal and overturned the certificate. He said that the man would have had a genuine fear of being persecuted, ill-treated and possibly even killed, and he was ultimately granted refugee status.
The second case is in a category that has been discussed more than once during this evening's debate. A woman from the Roma had received threatening letters and telephone calls, her house had been burnt down and she had been attacked by skinheads. Her claim was certified as being manifestly unfounded. The adjudicator said that if she were returned there would be a real risk that she would be subjected to torture or inhuman or degrading treatment.
The third case is of a man in Cameroon whose father had disappeared and whose family home had been burnt down. He was arrested and detained for three months, during which time he was systematically tortured, beaten with the flat-side of a machete and had his leg burnt with a hot iron. The Home Office certified that his case was manifestly unfounded. The adjudicator allowed the appeal, and he was granted refugee status.
Obviously, there are other examples, some of which other noble Lords quoted during the debate. The idea that the Home Office is somehow infallible in these matters will simply not stand up to a moment's examination. I note, too, that 40 per cent of cases that were certified as manifestly unfounded were in due course overturned on appeal. I shall quote from Lord Justice Stuart-Smith in the Demirkia case:
"Where evidence of past maltreatment exists, it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home".
That is self-evident, but it appears to have required a distinguished Lord Justice of Appeal to spell it out. How, then, can it be said that in those circumstances an appeal is manifestly unfounded? I will not weary your Lordships by elaborating further. The proposition is so clear that any refutation would be manifestly unfounded. I know that my noble and learned friend is exploring whether there is a solution that will accommodate the recognised, legitimate concerns of the Government and also our own. I am content to await his reply. I beg to move.
10 p.m.
Lord Judd: My Lords, my noble and learned friend Lord Archer of Sandwell has again put the case very well. I have one area of concern to add. Methods of torture have, unfortunately, become increasingly sophisticated. One dimension of torture is psychological torture, which is much more difficult to deal with because the physical scars are not necessarily there. I can imagine that under a great deal of pressure—and we have been talking about pressure;
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why else would we be having the debates that we have been having?—people with good intentions might find it difficult to credit that there had been torture. That is why it is terribly important that the judicial and other safeguards are in place to make sure that the issue has been very carefully examined. Physical torture is bad enough, but sometimes psychological torture leaves consequences of even longer duration.
Lord Mayhew of Twysden: My Lords, the noble and learned Lord spoke of the record of the Home Office. I have a strong residual loyalty to the department in which I had the honour to serve a long time ago. Fortunately for me, I was not in charge of immigration cases. The three instances that the noble and learned Lord cited are very dismaying because in each of them the official arm has certified that the claim for asylum was manifestly unfounded.
The amendment affords the Minister the opportunity to answer the question that I twice put to him before our adjournment: whether the system that he has taken pains to explain to us this evening—that one pair of eyes will be supplemented by another—was in operation at that time. He has probably had an opportunity to take instructions about that and I should be very grateful if he would let us know.
While the Minister is thinking about that, I beg him not to expound once again that all is well because there is to be judicial review. Judicial review is not the same as appeal. As part of the legislature, it is our duty to ensure that in every type of case, and never more importantly than when torture is concerned, the judicial system provided for by statute—and the adjudicator has to deal with these matters judicially—is sufficient to provide an appeal against such a decision. It should not be left to judicial review and the High Court to say that the system was inadequate and let the applicant down.
Lord Avebury: My Lords, will the Minister say something seriously about the proposals to deal with all the cases certified as manifestly unfounded by funnelling them through Oakington, including the ones to which the noble and learned Lord, Lord Archer, referred? If that is the case, how can someone who claims to have been tortured establish the basis of their case within the seven to 10 days that are normal for people to pass through Oakington and out the other side? In a torture case, somebody needs to obtain medical evidence. There may or may not be doctors available at Oakington with the necessary background and expertise to examine a patient and say whether the wounds that he displays are likely to have been caused by torture. Still less are there likely to be psychiatrists capable of evaluating the sort of claim referred to by the noble Lord, Lord Judd., in which someone says that they have been psychologically tortured. A specialist kind of medical examination would be needed for that.
If the Government intend to send every one of these cases that are certified as manifestly unfounded through Oakington, they at least have a duty to

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explain to the House how they intend, in such a short time, to process the ones who claim to have been tortured.
Lord Hylton: My Lords, the cases cited by the noble and learned Lord, Lord Archer, vividly illustrate the type of culture of disbelief that has prevailed in the Immigration and Nationality Directorate in the past and that I suspect is still found there. When he winds up, would the noble and learned Lord, Lord Archer, be kind enough to say whether he includes rape as a form of torture in the context of his amendment? It seems to me that the amendment is a minimum safeguard which the Government should accept if they wish to have their Clause 92.
Lord Goodhart: My Lords, we on these Benches entirely support the noble and learned Lord, Lord Archer of Sandwell, on this amendment. If anything, we would like to see it strengthened so that it applies to cases where there is a real possibility that the appellant would be tortured if returned to the country. The Minister may simply say that someone who has been tortured would never be regarded as someone with a manifestly unfounded claim, but I would not regard that as an adequate explanation. I think that the provision should certainly be included in the Bill to ensure that those who examine these cases always have in mind the question of whether there is a reasonable likelihood that the person has been tortured or would be tortured if returned. There is a value in including that in the Bill even if the noble and learned Lord, Lord Falconer, might not regard it as strictly necessary.
Lord Falconer of Thoroton: My Lords, of course the Government are fully committed to protecting those at risk of torture if returned to their country. Applicants who show that they face a real risk of torture if removed from the United Kingdom will have established that they have a well-founded human rights claim and—in many cases, depending on the reasons for that torture—that they have a well-founded asylum claim. In such instances, the question of certifying a claim as clearly unfounded under Clause 92 would obviously not arise. Far from being clearly unfounded, the claim would be well-founded and leave to enter or remain would be granted.
Lord Clinton-Davis: My Lords, then how did it come about that the Home Office made the initial, perverse decision in the cases cited by my noble and learned friend Lord Archer?
Lord Falconer of Thoroton: My Lords, as the subsequent adjudications revealed, those were mistaken decisions. I have not for one moment suggested that the Home Office and the IND are infallible; they plainly are not. I am sure that my noble friend Lord Clinton-Davis and the noble and learned Lord, Lord Mayhew, would be the first to agree that there is no system that does not make mistakes. I think
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that the critical question is the extent to which the systems proposed will adequately pick up the mistakes that are made.
I should like to answer directly—which I have not done before—the point made so clearly by the noble and learned Lord, Lord Mayhew. The general policy for the past few years has been to have a single pair of eyes for the making of a decision. In any case, however, the officer dealing with the case can seek the advice of a senior caseworker. I cannot tell the noble and learned Lord whether the officers dealing with the three cases cited sought the advice of a senior caseworker. However, the procedure in future for clearly unfounded cases will be that every case is looked at by two officials specially trained in such cases, and there will be additional quality checks on top of that. So under the new arrangements the system will be different from that which applied to the three cases to which the noble and learned Lord, Lord Archer, drew attention.
The Earl of Listowel: My Lords, just on a point of information for the next stage, will the Minister outline how much regular supervision these workers receive? Good supervision and a proper system of regular supervision are such important factors in the effectiveness of those working on the front line. If it is available, I would appreciate more information on that point for the next stage.
Lord Falconer of Thoroton: My Lords, I shall try to write to the noble Earl on that point before the next stage.
The amendment is addressed at a different target from that of risk of torture to someone if he or she is returned. It is concerned not with the future prospect of torture—that is, whether removal would result in a person being tortured—but with the possibility that a person has in the past been subject to torture. The two matters are obviously related but they are different concepts. It is that difference which leads us to resist the amendment.
There are two main issues to address. The first is the relationship between previous torture and the prospect of future torture or other forms of serious harm. The policy underpinning Clause 92 is that where an asylum or human rights claim can objectively be regarded as being clearly unfounded, it is reasonable and sensible to deny a person an in-country appeal right against the refusal of their claim. The clause does not go on to define what is a clearly unfounded claim although it does create a presumption that claims from residents of certain countries will be clearly unfounded. We think that it is better to leave the term without further definition as its general meaning is well understood by the courts. Indeed, just a week ago the House of Lords restated the position in its judgment in Thangarasa which the noble Lord, Lord Lester of Herne Hill, who is not present at the moment, referred to before the dinner break.
Accepting this amendment would, therefore, mark a change from that open approach. It would provide in effect that where a person had in the past been tortured

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in the country to which we proposed to return him or her, that claim could never be clearly unfounded. Such an approach would, in our view, be wrong. We accept that evidence of past torture or persecution is often a good indicator that a person would risk torture or persecution if returned to that country. So there will often be cases where applicants who demonstrate a real possibility of past torture will be successful in their claims.
There will also be some cases where we do not consider that the torture or persecution will be repeated and, accordingly, we refuse the claim but where we do not think that the claim is clearly unfounded. In such cases certification under Clause 92 would, of course, not be appropriate. But we do not discount the possibility that in some cases a person who may have been tortured in the past would in the present day have a clearly unfounded claim. Because country situations can change substantially over a period of time, it is perfectly possible that someone who was tortured 15 years ago would today face absolutely no risk of torture or persecution in their home country.
The consideration of an asylum or human rights claim involves a forward-looking assessment of risk based on present-day country information and the experiences the applicant has faced in the past and may face in the future. One cannot underestimate that the evidence of past torture is an important part of this consideration, but the amendment would elevate it to a factor which trumps all others. That would distort the process of assessing the claim—a process which should be a rounded exercise taking account of all relevant factors.
The second issue might be expressed as the argument that the clearly unfounded process is too rapid to handle the claim of a victim of torture—which was the point made by the noble Lord, Lord Avebury, both before and after the dinner break—and that even if it is objectively true that an applicant in those circumstances has a clearly unfounded claim, there is too great a risk of our coming to an inaccurate decision because there may be relevant facts which come to light only after the applicant has been removed. That is the principle underlying the point that the noble Lord made. He referred specifically to the process in Oakington. First, he asked whether it was right that almost all of those claims which might be in the clearly unfounded category would be dealt with at Oakington. Although there may be some exceptions and there may be places with a similar approach to Oakington's, broadly an Oakington-type process will be used in the first instance. I believe that that answers the noble Lord's first question.
Secondly, the noble Lord asks what the process will involve. The possibility of past torture can be identified early on in Oakington in a number of ways. The applicant may mention it directly, although I fully accept the point made by the noble Lord, Lord Hylton, and by my noble friend Lord Clinton-Davis; namely, that people who have gone through the trauma, for example, of rape, which is plainly a form of torture, may be too traumatised to speak about their
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experience. However, that possibility may be picked up by the on-site medical team. As the noble Lord, Lord Avebury, knows, and as everyone else who is aware of what goes on in Oakington knows, there is an on-site medical team that is keen to investigate such cases.
There is also an on-site legal team that is available to advise applicants. That team, and the medical team, are in a position to seek to draw from applicants enough of the history of such experiences to establish whether or not there may be an issue that is worth investigating. If that is the case, then either the legal or the medical representative can contact the medical foundation—an organisation with which noble Lords are familiar. They are completely free to do so. A referral form can be sent to the medical foundation, which is expert in looking for precisely the sorts of experiences about which noble Lords are concerned. Once the representatives produce a copy of the referral form to the medical foundation, the applicant would be moved out of Oakington, or out of the Oakington-type place, to enable the medical foundation to carry out its examination. A decision on the claim would not be taken until after the medical foundation had completed its assessment.
If the medical foundation finds that there is evidence of past torture, it would normally mean that the claim was not one that merited certification as being "clearly unfounded". So the process in Oakington, or in the places analogous to Oakington, allows for medical or legal advisers to identify whether or not a claim should be referred to the medical foundation. Once that reference is made—there is absolutely no evidence to suggest that references to the medical foundation are being abused as a means of delay; indeed, it is a sensible use of the process—the applicant is taken out of the process which might lead to a clearly unfounded certificate, and the result of the medical foundation's approach is considered.
As I believe I made clear, if the medical foundation finds that there is evidence of past torture, that would normally lead to the applicant's claim being taken out of the route that could lead to a "clearly unfounded" finding. I cannot rule out some exceptions to that because circumstances may have changed so significantly in an individual's case since the torture occurred that there may clearly be no risk to the person if now returned. Plainly, those would be exceptional cases; for example, torture 15 years ago in a country that has since gone through a regime change.
I have outlined how the system works. That is my answer to the point made by the noble Lord, Lord Avebury—that the process does not allow long enough for such determination. He referred to the seven-to-10 day period. If the on-site experts consider that there might be something that could lead to the belief that there is some risk of torture, they have the

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power to refer the matter to the medical foundation; indeed, there is no restriction in that respect. We then await the medical foundation's conclusion—
Lord Goodhart: My Lords, is the noble and learned Lord suggesting that the medical foundation, which is a wholly-independent charity, is part of the decision-making process?
10.15 p.m.
Lord Falconer of Thoroton: No, my Lords; I am not suggesting that for a moment. The issue here is whether or not such claims are "clearly unfounded". If, after having investigated a particular applicant's claim, a very reputable body like the medical foundation finds that that applicant has suffered torture, whether physical, psychological, or sexual violence of the kind mentioned by the noble Lord, Lord Hylton, that would normally be sufficient to create enough evidence to make it clear that the case could not be "clearly unfounded". That is the issue.
If a reputable medical expert says, "This is the position", it is like asking whether he then becomes part of the decision-making process. No, that is not the case; he becomes part of the material-gathering process that must be weighed and considered in the making of the decision. Once the medical foundation indicates that there has been torture, it is very unlikely that such a case could be determined as "clearly unfounded".
Caseworkers at Oakington and the analogous organisations have guidance available to them on dealing with potential torture cases, and training is also provided. A rolling programme of seminars from the medical foundation, the UNHCR and the Red Cross has been launched to equip caseworkers to deal fairly and sensitively with those applicants who have suffered torture or other forms of trauma. Those seminars are proving very successful.
If an applicant raises the issue of previous torture or if the trained caseworkers believe that there might be something that is worthy of investigation by the medical foundation, the procedures are in place to deal with that. Should a person not mention torture, should that not emerge during the course of the substantive interview and should the inquiries by the medical and legal experts in Oakington not produce any sign of it, the amendment would not bite because no evidence of torture would have been adduced.
I repeat my opening remarks that the Government are fully committed to providing protection for those who would face torture if removed. The amendment is underpinned by intentions with which we all agree.
Earl Russell: My Lords, I draw the attention of the noble and learned Lord to Section C of the preparatory works to the UN convention of 1951. It states that while it may be possible to remove a refugee to a country that is physically safe for him, a refugee should not be removed to a country in which he has undergone such distressing experiences that he can
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never feel safe there. That provision and the amendment say exactly the same. I should have thought that the proper reply to the amendment, if the Minister wished to resist it, would be to say that it is unnecessary because it is covered by Section 2 of the 1993 Act and that the Immigration Rules may not contain anything contrary to the 1951 convention.
Lord Falconer of Thoroton: My Lords, my position in relation to the question of torture has been clearly set out. I accept in many cases—indeed, it would be the norm—that if there had been torture, it would be very unlikely that the claim could possibly be described as clearly unfounded. I go further—in many cases, the claim would have been made. All I am saying is that there will be cases that appear not to be barred by provision "little c", to which the noble Earl referred, in relation to which there was torture a long time ago and the current position in the country is such that no reasonable person could possibly conclude that it made the applicant's position too distressing to live in that country or that there was no real risk of persecution. If, for example, the applicant had lived for 15 years without any assault on him by the state but he sought to make a claim for asylum or an infringement of human rights, based on torture from a long time ago—that would be an exceptional case—I am not sure whether that would be caught by provision "little c"; nor do I understand the noble Earl to be suggesting that it would.
Earl Russell: My Lords, it is so explicitly asserted by the preparatory works to the convention, which I did not write.
Lord Falconer of Thoroton: My Lords, I am very wary of getting into this because the noble Earl has a much greater memory of the precise words than I have. The test, as I understand it, is that as a result of what happened the trauma of living in the place is unfair on the applicant. What is the position when there was torture some considerable time ago but the person lived perfectly happily in the country because the regime changed and there was no chance of torture? That does not appear to fit into the provision of which the noble Earl gave us an abstract. I say only that this is not an absolute.
Earl Russell: My Lords—
Lord Falconer of Thoroton: My Lords, I was not inviting the noble Earl to keep the debate going, unless he is absolutely determined.
Earl Russell: My Lords, the Minister is plainly contradicting the words of the convention and the UNHCR handbook. Incidentally, the provision has a large "C".
Lord Falconer of Thoroton: Sorry, my Lords. I accept that the provision has a large "C".
Perhaps I should clarify what I am saying. If the torture had the relevant impact the noble Earl would of course be right. My only point is that if the torture

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is of the sort that I described, it might not have had such an impact, but that would be an exceptional case. I do not wish to be taken to be asserting anything other than that torture would normally give rise to a claim that could not possibly be described as clearly unfounded.
I repeat that the Government are fully committed to providing protection for those who would face torture if removed. The amendment is underpinned by intentions that we all share. However, we believe that, in making an inflexible link between past torture and future risk, it goes too far. The ultimate question is whether a claim is or is not clearly unfounded. Evidence of past torture is an important factor in determining that question, but it is not the only or decisive factor in all cases.
For that reason, and in the light of assurances that I have given about our commitment to fair handling of claims involving torture, including the outline of the procedure that I gave in answer to the specific questions raised by the noble Lord, Lord Avebury, I invite the noble and learned Lord to withdraw his amendment.
Lord Archer of Sandwell: My Lords, clearly my noble and learned friend has directed his mind to the concerns expressed in the amendment. I am not sure that the system that he described and the intentions which he seeks to incorporate are beyond improvement. I am tempted to embark on a number of factors which occur to me now. I am not persuaded that it would be wise to formulate them spontaneously, nor perhaps to attempt to negotiate with my noble and learned friend in the course of a public debate.
I was somewhat persuaded by the possibility that there might have been a change of regime a very long time ago and that that is not specifically provided for in the amendment. As ever when he intervenes in a debate, the noble Earl, Lord Russell, totally transformed the ambience in which we are debating. I believe that that will also require a certain amount of concentration.
I should like to reflect further and to consult, in particular, my noble friend who supported me in the amendment, other noble Lords who have participated in the debate, and the non-governmental organisations which, again, have so generously provided us with advice. I give no undertaking that your Lordships will not be invited to consider the matter again. But, for the present, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 43A not moved.]
Clause 94 [Earlier right of appeal]:
Lord Avebury Lord Avebury moved Amendment No. 44:
Page 53, line 39, leave out "the Secretary of State or the immigration officer" and insert "an adjudicator"
The noble Lord said: My Lords, Clause 94 provides that, if at one time a person had a right of appeal and was notified of it but did not exercise it for any reason and he then formulated a new application, the Secretary of State could then certify that, in his
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opinion, the person made the new application in order to delay his removal from the United Kingdom and that he had no other legitimate purpose for making the application. If a case is so certified, then the person has no right of appeal. He does not have an opportunity to explain to a competent tribunal why he did not choose to exercise the right of appeal on the earlier occasion.
Many of your Lordships will be familiar with cases where a person has changed the basis of his claim halfway through and ultimately has been successful. We say that such people will no longer have a right of appeal because the Home Office is saying, "You had that right on a previous occasion. You chose not to exercise it and we can't see any good reason why you should have an appeal now". That will be that and the person will be subject to removal.
There is nothing on the face of the Bill to prevent the Secretary of State from certifying an application in circumstances where the applicant had a perfectly good reason, which he could have explained, for failing to make use of earlier appeal rights. On the basic principles of fairness, the Immigration Appellate Authority and not the Home Office should decide whether a person has a meritorious appeal against a Home Office decision. I beg to move.
10.30 p.m.
Lord Falconer of Thoroton: My Lords, these amendments result in what we would consider to be a seriously backward step. The one-stop system introduced in 1999 has been a success. It helps IND to consider all aspects of the case more efficiently and gives those with a case the opportunity to put it forward at an early stage and have an earlier decision. It stops those who would put forward late claims to prevent the reasonable implementation of a sound decision.
It stops no one from having the right of appeal if they want it; it stops no one from claiming asylum or putting forward human rights grounds. It stops them from successfully delaying or evading a removal, the reasons for which they have the opportunity to dispute earlier.
Clause 94 simply builds on existing legislation. The 1999 Act introduced the one-stop procedure. The intention is that we deal with all the applicants' points quickly and in one go instead of bit by bit. That is the system set up by the 1999 Act. Some applicants, and nearly all those lodging an in-country appeal, are required by Sections 74 and 75 of the 1999 Act to disclose their full grounds for remaining here. They are-given a formal notice which warns them that if they raise a matter later which they would have raised at that point, they may not be able to appeal on that particular matter. Various provisions have that effect.
During the debate in Special Standing Committee in April 1999 there was general agreement that the one-stop procedure was a positive development. However, there were also concerns that judicial reviews would increase. The one-stop procedure works, and the more people get used to it the better it will work. If applicants and their advisers know that they musts

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disclose everything at an early stage and that spurious late claims will not get them anywhere, the tactics should not be used any more. Ideally, we should never need to certify a late claim because the only late claims we get are due to genuine changes in circumstances, for which the procedure permits. We would be delighted if that were the case.
I have taken some time to go back to present legislation so that we can sensibly discuss how we have built on it. Under our proposals applicants may be advised on application or soon after that they must state all the reasons for wishing to stay in the United Kingdom. They will be warned of the consequences if they do not apply. By extending the power to give a warning to all applicants we catch those who do not mention asylum or human rights initially so that we can deal appropriately with a tactical claim later. If the application is refused, with a right of appeal, the disclosure requirement will be repeated when appeal forms are sent out.
We think that it is reasonable, fair and just that, if the opportunity to apply and appeal a refusal has been offered and the applicant chooses not to take it and warnings have also been given, any later application can be certified. That mirrors the effect of Section 76(5) of the 1999 Act in asylum cases but extends it to other types of case dealt with in this country.
It will also bring into the system those who are liable to an adverse decision, such as deportation or curtailment of leave, without having made an application. Issue of the one-stop warning will become discretionary so that the system better targets those cases where it is likely to be of benefit. We do not intend to impose a requirement on every short-term visitor to our shores, for example. At the same time we have simplified how the one-stop system works in practice. That has been welcomed, for example by the Refugee Legal Centre, whose briefing speaks of our simpler and more effective scheme.
Opposition Amendments Nos. 44 to 47 will take away the element which makes one-stop work; that is, the fact that a late application intended to delay by virtue of an appeal no longer has that effect. Having to put the case before an adjudicator would almost inevitably mean that the removal arrangements would have to be cancelled.
Every person whose case is certified will have had the opportunity to make an asylum or human rights case to the Home Office in the proper manner. If they have done, and it has been refused, they will have had the opportunity to appeal. They can apply for judicial review of any one-stop certificate issued in their case and of the decision to refuse the claim, so they are not without recourse.
The general principle that the certificate should deny access to the adjudicator has been with us now for nearly two years. However, no one who has been certified can say that they were not required, often twice over, to make their claim at the appropriate time.
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The Joint Committee on Human Rights reminded us of the need to ensure that people are not removed before they have had an effective opportunity to ask for a court's help in enforcing convention rights. The one-stop warning given under Clause 103 requires the person to put forward any convention issues he may have so that any refusal can go through the full appeal process, not just the higher courts.
It is up to claimants to take that effective opportunity when it is offered by complying with the requirement. If they do not and the case is certified they will still have access to judicial review. So, overall, it is a fair system.
Lord Avebury: My Lords, I did not hear the noble and learned Lord say anything about the circumstances which I postulated in moving the amendment; that the person has a legitimate reason for not taking advantage of the appeal at the earlier opportunity. As the noble and learned Lord explains the situation, although his case can be certified, the general tenor of his remarks is that it would be certified and it does not make much difference what explanation the applicant gives to the Secretary of State, he is still going to be whisked off without a proper hearing.
We believe—and this was the basis for the amendment—that under existing systems in the IAA one can have short preliminary hearings and rulings. Those would be suitable for dealing with the question of whether a particular case was spurious. I see that I shall not persuade the noble and learned Lord of this at 10.35 p.m., so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45 to 47 not moved.]
Clause 95 [National security, &c.]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 48:
Page 54, line 22, leave out "against an immigration decision" and insert "or 81(2) against a decision"
The noble Lord said: My Lords, Amendments Nos. 48 and 49 are technical drafting points. There is no need to refer to immigration decisions. The decisions under which there is an appeal under Section 81 are set out. That avoids any confusion.
Amendment No. 50 applies to a lapsed appeal under Clause 94, which is about certification of later appeals. It makes clear that as an appeal cannot be continued it must lapse. These amendments are designed for clarification. I beg to move.
Earl Russell: My Lords, can we have some explanation of what type of decision is meant by the amendment?
Lord Bassam of Brighton: My Lords, the decisions are listed in Clause 82.
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendment No. 48A:
Page 54, line 35, leave out paragraph (c).
The noble Lord said: My Lords, these government amendments respond to concerns about wording and other matters of a political kind expressed by the noble and learned Lord, Lord Mayhew, in Committee. I acknowledged that on reflection we should accept the wisdom of what he had advised us.
We debated the issue on Report on 9th October. It is unnecessary for me to speak further about these amendments, although I should be happy to deal with any points raised. I beg to move.
On Question, amendment agreed to.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal) moved Amendment No. 49:
Page 54, line 36, leave out "against an immigration decision" and insert "or 81(2) against a decision"
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendment No. 49A:
Page 54, line 43, leave out paragraph (c) and insert—"
(c) otherwise in the public interest."
On Question, amendment agreed to.
Clause 97 [Sections 95 and 96: appeal in progress]:
Lord Filkin Lord Filkin moved Amendment No. 50:
Page 55, line 21, after second "section" insert "94(1) or (2)."
On Question, amendment agreed to.
Clause 99 [Appeal to Tribunal]:
Lord Joffe Lord Joffe moved Amendment No. 51:
Page 55, line 31, leave out "on a point of law"
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 52 to 54, 57 and 59. I support Amendment No. 52 in the names of the noble Lords, Lord Dholakia and Lord Avebury, although, if it were accepted, Amendments Nos. 53, 54, 57 and 59 would fall. As my amendments have correctly been grouped together, and as one of them concerns an issue that has not been raised before, I fear that I shall take a few minutes more of your Lordships' time than I should have wanted, for which I apologise—especially at this late hour.
The context in which I approach the amendments is that, despite my deep sympathy for almost any refugee who aspires to make his or her home in the United Kingdom, I understand the Government's objective: to speed up the asylum process and prevent abuse of the system. However, it is impossible for anyone concerned with justice to support the removal of the legal rights of those refugees who are entitled to asylum to prevent abuse by those not so entitled.
The purpose of Amendment No. 51, to which the noble Lords, Lord Dholakia and Lord Judd, have added their names—for which I am grateful—is to preserve the existing jurisdiction of the Immigration Appeal Tribunal to hear appeals the grounds for which are either errors of law or fact. The Bill proposes to limit the grounds of such appeal to points of law only. The tribunal's current factual jurisdiction enables it, in appropriate cases, to grant leave to appeal where there
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is some compelling reason why the appeal should be heard—in other words, where the interests of justice demand it.
In Committee, the noble Baroness, Lady Scotland, stated that increasingly it has been the tribunal's practice to grant permission for an appeal to it only where a point of law is at issue. Accordingly, it is difficult to understand why the Government should find it necessary to introduce legislation to compel the tribunal to do what it is already doing. The reason provided by the Minister was that that would provide a better use of judicial resources in a two-tier appeal. It is equally difficult to understand how that conclusion is justified. The Government have admitted that they have no idea how many cases are appealed solely on a question of fact; how many succeed; how much judicial time is wasted; and what difference, if any, the removal of the right to appeal on a question of fact would make to speeding up the processing of asylum claims.
In justifying the removal of the right to appeal on the facts, in Committee the Minister drew the Committee's attention to Sir Andrew Leggatt's recommendation in his report on the review of tribunals that appeals to the second appeal tier should be on a point of law only. However, if the Minister had had the time to read the report, she would have realised that the recommendations related to an entirely differently constituted first and second appeal tier. Sir Andrew thought that there was a structural anomaly in the current system that brought in the contribution of non-lawyers too late in the process and created serious problems. He proceeded to recommend a different system. I cite his report:
"There should be a first-tier immigration and asylum tribunal…which should be the sole judge of issues of fact. Complex factual issues are a regular feature of immigration and asylum cases… Many cases would not be suitable for hearing by a chairman, even legally qualified, sitting alone and expert members should be used when appropriate at this level… There should be a second-tier tribunal, consisting of a lawyer sitting alone, to hear appeals on a point of law only".
So, far from supporting the Government's proposals, Sir Andrew raises the same concern that I raise. To exclude appeals from a single adjudicator on a point of fact would inevitably lead to miscarriages of justice because, as he points out, complex factual issues are a regular feature of immigration and asylum cases.
In Committee, I raised the recent case of a Turkish Kurd whose claim had been rejected by an adjudicator but whose appeal was upheld by the tribunal on an error of fact. The Minister responded that the Turk could still appeal under Clause 99, if the adjudicator's decision on the facts was perverse. However, an analysis of the case shows that it was not a perverse decision; it was a possible—but wrong—interpretation of the facts. Had Clause 99 been in force, the Turk would have been denied asylum and been returned to Istanbul to face persecution.
Surely, the Minister is not suggesting that, when interpreting the facts, adjudicators can never be wrong. We should bear in mind the fact that many adjudicators are part-time and have different levels of

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knowledge of immigration law and practice. Inevitably, some will be new appointments. There will be injustice, unless—in a limited number of cases only—appeals can be made on a point of fact. To exclude that right would be to discredit the Government's claim that they guard jealously the fairness, integrity and probity of our legal system. Can the Minister give any assurances that asylum seekers, who would have been entitled to asylum but for errors of fact that were not perverse, will receive justice?
The remaining amendments in the group focus on the removal of the right to address oral argument and on the removal of the jurisdiction of the Court of Appeal. I assume that the noble and learned Lord, Lord Archer of Sandwell, will, with his immense experience, deal with the importance of retaining the right to an oral hearing. I will touch only on the Government's failure to make the case for the saving in time that will result from the removal of that right and on the consequences of removing the right.
No statistics have been provided to show that there has been an evaluation of how much judicial time will be saved. In his report, Sir Jeffery Bowman undertook the type of analysis that one would expect the Government to have undertaken to justify the proposals. Sir Jeffery analysed the time spent by judges on judicial review cases. He found that a paper application for judicial review took a judge about 25 minutes to deal with, while an oral application took 22 minutes, in addition to 29 minutes of preparation, making a total of 51 minutes of a judge's time. By restricting oral argument, the Government are, at best, saving under an hour per appellant. The result will be that an asylum seeker whose application could have succeeded, if he had been permitted to present it properly, may be returned to his country of origin, with all the attendant perils, because our judicial system is not prepared to find an extra 51 minutes of judicial time to allow him to present his case.
It seems that the priority is no longer to ensure that justice is done but that appeals should be disposed of as quickly as possible. The law is clear: the courts are required to give asylum cases anxious scrutiny. Yet, in Committee, the Minister explained that statutory appraisals would be rushed through in four weeks, beginning with a draconian time limit of 10 days to lodge the appeal. Presumably, there will be 10 days for the tribunal judge to consider the case and a further 10 days for the High Court judge who, as the Minister put it, will "swiftly" check the tribunal's decision on a question of law. The Bowman report found that, when such decisions had to be made within 10 days, the pressure on the court,
"has meant that leave decisions are made swiftly (we are told in 10 or 15 minutes) and are often supported by inadequate reasons, reproduced in identical form in many cases".
Self-evidently, it is impossible for judicial officers to give anxious scrutiny to appeals while they are swiftly seeking to meet unrealistic time limits and, at the same time, are deprived of the opportunity to hear oral argument. Inevitably, the victims will be genuine
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refugees, who, because of such swiftness, will be denied asylum that would have been granted in a more measured and fairer legal system.
I now turn to Amendments Nos. 57 and 59 which seek to retain a right of appeal to the Court of Appeal against the decision by the statutory review judge. The House of Lords judgment in the well-known case of Shahana Islam and others demonstrates the injustice that will flow from removing the existing right of appeal. The case reached the House of Lords by way of application for judicial review of the tribunal's refusal of leave to appeal from an adjudicator. Shah lost in front of the adjudicator and was refused leave to appeal to the tribunal. He applied and obtained judicial review of the tribunal's decision. The Home Office then appealed to the Court of Appeal and won. Shah then appealed to the House of Lords and won.
I will not go into the details of the facts of the case. It suffices to say that this judgment has had an enormous impact in terms of day-to-day cases in the Immigration Appeal Tribunal. It clarified an important issue of the interpretation of the refugee convention, and many genuine asylum seekers had their claims for an asylum upheld as a result. Under the proposed legislation, the Shah appeal would not be permitted and one must ask why not as it is rare for asylum seekers to get leave to appeal to the court of appeal.
It is clear that some of the provisions in the Bill will prejudice the position of asylum seekers entitled to asylum and that there must be better methods to achieve the Government's objectives without prejudicing genuine asylum seekers. Some of the ways of speeding up the process, but at the same time ensuring just outcomes, are set out in the reports from Sir Jeffrey Bowman and Sir Andrew Leggatt, commissioned by the Government but in respect of appeals not accepted by them.
I have one final question for the Minister. Does he envisage that the test for the judge to apply in statutory reviews will be the same as the tests which the tribunal currently applies in determining whether to grant leave to appeal? I beg to move.
Lord Goodhart: My Lords, it is not necessary for me to go into the detail of Amendment No. 52, standing in the name of my noble friends Lord Dholakia and Lord Avebury. It is part of the group which carries the same theme. It has been put extremely thoroughly and persuasively by the noble Lord, Lord Joffe, and I can say only that we on these Benches agree with what he has said. The provision is another example of the Government's clear intention to limit the number of appeals and I believe that the limitation would impose a significant risk of a wrong decision being taken.
It is highly desirable that the decision of an adjudicator, who sits as a single judge in these matters, should be reviewed not only on the law but on the facts. There are significant numbers of cases where an adjudicator is likely to be seen to have gone wrong on the facts. If the only ground of appeal is on a point of law, it becomes much more difficult, because not only must the tribunal disagree with the views expressed by

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the adjudicator, but it must reach the conclusion that that decision is not only wrong but perverse. For that reason, we believe that these amendments are totally justified and we strongly support them.
Lord Kingsland: My Lords, the Government's proposals to replace full judicial review of a refusal by the Immigration Appeal Tribunal of leave to appeal with the new statutory review procedure, provided for in Clause 99, was extensively debated in Committee on 29th July.
Amendment No. 58 is restricted mainly to the Scottish judicial system and relates to a point made by my noble friend Lady Carnegy of Lour on 29th July. The point is whether or not, because of the use of the term "the High Court" in Clause 99(3)(d), rather than the term:
"the High Court or in Scotland, to the Court of Session",
which appears in subsection (2) of the clause, applications for what are effectively wasted costs orders against counsel who pursue applications for statutory review that are wholly without merit can only be made outside Scotland; and, if so, whether this is the Government's intention.
If there is, indeed, a defect in the Bill, Amendment No. 58 would cure it by removing the word "High", so that the paragraph would refer to "the Court"—which would encompass both the High Court in England and Wales and the Court of Session in Scotland, as those are the courts to which applications are made under the clause. The noble Lord, Lord Filkin, undertook to write to my noble friend Lady Carnegy when she raised the point on 29th July, and this amendment, therefore, gives the Government the opportunity to place their response on the record.
As to Amendment No. 55, I said that the noble Baroness, Lady Scotland, would have to put forward a powerful case to rebut the arguments in favour of allowing some form of oral hearing advanced by her noble and learned friend Lord Archer of Sandwell. In fact, the most powerful case put forward in that debate was not from the Government Front Bench, but from the Government Back Benches.
The noble and learned Lord, Lord Archer, stated:
"Our procedures across virtually the whole of our legal system are based on oral argument. That is because it has been found by long experience that that is the best and fairest way to clarify the issues and the arguments. It is usually the most expeditious way. We might have conducted our proceedings in your Lordships' House by exchanging memoranda, but we found by experience that oral debate is more likely to lead to a proper conclusion… I hope that my noble friend will not find herself in the position of saying, 'Even if the judge believes that oral argument is necessary to lead to a just outcome, it will not be made available to him'. That would be a monstrous affront to the judiciary and a flagrant denial of justice".—[Official Report, 29/7/2002; col. 706.]
The noble Lord, Lord Clinton-Davis, said:
"It is highly wrong that oral argument should be removed from the judges altogether. With respect, I do not believe that putting documents before them can be any substitute…the case put forward by the Government, which I generally support, is wholly wrong in this regard. I simply cannot see that oral argument has to be viewed with such suspicion".—[col. 707.]
The noble Lord, Lord Judd, commented that:
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"as a layman, it is absolutely clear to me when I look at the judicial system that a deliberation on written evidence cannot be compared in quality with a deliberation on evidence that is both written and oral. It is self-evident that it cannot be of the same quality, depth, care or integrity".—[col. 709.]
The noble Lord, Lord Corbett of Castle Vale, stated:
"I say to my noble friend on the Front Bench that I very much hope that she will take on board the points made by my noble and learned friend Lord Archer of Sandwell… In my view it gives nothing away to give the sole judge who will hear the appeals we are discussing discretion to say, 'I do not feel that I am able in this particular case to come to a secure judgment solely on the basis of the relevant papers' and therefore to enable that judge in those circumstances to say that he wants to hear some oral argument".—[col. 715.]
If the Government will not listen to such an impressive coalition from their own Benches, then I suspect that my argument will add little weight.
However, I ask the noble Baroness whether she will undertake to consider the points that have been made in your Lordships' House today, as well as those that were made in Committee in July.
Your Lordships will have noted that Amendment No. 54 on this point appears in the names of the noble Lords, Lord Joffe and Lord Judd; that Amendment No. 55 appears in my name and that of my noble friend; and that Amendment No. 56 stands in the names of the noble and learned Lord, Lord Archer, and the noble Lords, Lord Clinton-Davis, Lord Joffe and Lord Judd.
I should also like to raise another substantive point in relation to a hearing on the papers alone. The right reverend Prelate the Bishop of Southwark made an extremely important point; in the debate in Committee when he said:
"The right to an oral hearing in a higher court is central to justice in this country; without it, the decisions of the Immigration Appeal Tribunal will not be subjected to the 'most anxious scrutiny', which is to be expected in human rights decision making".—[Official Report, 29/7/02; col. 707.]
The noble Lord, Lord Filkin, certified the Bill—and therefore the provisions of this clause—under the Human Rights Act 1998 as being compatible with the convention. Can the noble Baroness confirm that it is the Government's view that a hearing solely on the papers satisfies the requirement of Article 13 of the convention that there should be an effective remedy against the breach of convention rights by a national authority?
The European Court of Human Rights has said that full judicial review is such a remedy. Can the Government tell your Lordships today the reasons why they consider that the statutory review procedure in the Bill also meets that test, notwithstanding that it does not provide for the possibility of oral argument or the right of appeal? I should be most interested to hear from the noble Baroness the Minister on that point, which will doubtless have been considered in some detail by Ministers before the certificates of compatibility were signed.
The final point that I wish to raise in respect of whether or not there should be the possibility of an oral hearing is this: your Lordships will recall the proceedings in your Lordships' House some three

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years ago on the two mode-of-trial Bills put forward by the Government. Noble Lords will also recall that the Government proposed in those Bills to allow a right of appeal to a Crown Court judge against decisions of magistrates on mode of trial, and that it was this right of appeal that was so crucial in changing the mind of the noble and learned Lord, Lord Williams, who had, while in opposition, been opposed to the removal of the right to elect trial by jury. Indeed, I recall the noble and learned Lord describing in those heady days of opposition—heady for him, that is—that such a step would be madness.
However, my point relates to the way in which such appeals to the Crown Court would have been heard had the Bills been enacted. In a Written Answer in another place, the then Home Secretary, the right honourable Jack Straw, stated:
"The Government believe that most appeals will be determined on the basis of the papers. It would however be open to the parties to seek to make oral representations, which the judge could agree to hear if he considered it necessary in the interests of justice; the arrangements for such an oral hearing would be a matter for the judge's discretion".—[Official Report, Commons, 2/3/00; col. 377W.]
Why then, if the Government were prepared to allow for the possibility of an oral hearing if the judge considered it necessary on a mode-of-trial appeal in the criminal courts, are they not prepared to allow for an oral hearing if the judge considers one necessary in such a case as we are discussing? What is the difference—if, indeed, there is any at all? I look forward to the noble Baroness's response.
11 p.m.
Lord Archer of Sandwell: My Lords, I rise for two purposes. The first is to support Amendment No. 51. I shall not attempt to improve on the case so clearly made out by the noble Lords, Lord Joffe and Lord Goodhart, except to add one further reflection. The composition of the Immigration Appeal Tribunal is a legal chairman and two lay members. Can my noble friend tell the House what is the function of two lay members on a tribunal which is hearing appeals confined purely to points of law?
As to the amendment relating to the review of a decision by the Immigration Appeal Tribunal not to give leave to appeal, all noble Lords who have spoken have set out their respective arguments so clearly that, again, it would be superfluous—not to say arrogant—if I were to try to improve on them.
My Amendment No. 56 was intended to be a compromise and to give my noble friend a let-out. It proposes that the judge should see the papers. If he decides that the refusal of leave to appeal by the IAT was properly considered and concluded, then so be it; that is the end of the matter. If he decides that the IAT's decision is clearly open to objection, he will no doubt pronounce accordingly and oral argument will not be necessary.
But let us suppose that the judge is not sure. Let us suppose that he believes that the matter should be argued before him because he thinks that he would
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benefit from oral argument. Is he then to be told that he is not entitled to hear oral argument? An experienced judge may be expected to know whether he will be assisted by oral argument. My amendment is designed simply to leave that option open to him.
Because I shall not be able to address your Lordships again in the course of this debate, perhaps I may repeat a point that I made earlier. I shall listen carefully, as I always do, to my noble friend's response. If she makes a proposal which I think requires consultation with other noble Lords and with the NGOs, I propose not to take any further action tonight but to pursue that consultation. There is still Third Reading. I say that simply because I do not know what is going to happen next—a situation in which we frequently find ourselves in this Chamber. But in due course I shall have to decide whether to press Amendment No. 56.
Earl Russell: My Lords, I shall not attempt to gild the lily as regards the remarks of my noble friend Lord Goodhart. But perhaps I may add to the all-party support for Amendments Nos. 55 and 56, which seem to drive at similar points. "Hear both sides" is a fundamental maxim of natural justice. I know that a rising tide of paper is lapping round the base of that principle. But, every now and then, rising tides of paper reach the point where people feel the need to erect flood defences against them. I feel that that point may be approaching, especially in asylum cases.
In any first decision in asylum cases, so often the key point is the credibility of the applicant. I know—because it is my professional duty as an historian—that one may attempt to judge the credibility of people off paper, but just for that reason I know how difficult it is. I know how much more satisfying it would be to be able to cross-examine Charles I on what exactly his motives were. I support these amendments warmly.
Lord Judd: My Lords, my noble friend the Minister cannot possibly ignore the complementary nature of the contributions from all quarters of the house on this issue. There is obviously widespread concern about the matters raised in the amendments.
When this group of amendments was introduced by the noble Lord, Lord Joffe—whom I have enjoyed knowing for many years in our work together in Oxfam and elsewhere—not only did we hear a powerful legal case, but behind it was the moral authority of someone who was in the front line of these issues as a human rights lawyer in South Africa in the old days and who, as a result of that work, was compelled to leave South Africa.
Central to all the various considerations put forward in relation to these amendments is the issue that I raised earlier. I make no apology for stressing it again. If we really remain committed to the principle of asylum, as distinct from settling for a management policy to ensure that not too many people come to this country, it is unthinkable that anyone who is pursuing a case for asylum should be denied all the processes of the law which have become so important in the rest of the legal administration in our national life. It is just

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unthinkable. Asylum, by definition, is about such acute human need. I underline the point made earlier that if the appeal procedure is removed, where will be the discipline of excellence that the existence of such a system ensures in the administration of justice generally? We are in danger of dumbing down our whole concept of justice and its administration.
Lord Hylton: My Lords, I support the amendments moved by my noble friend Lord Joffe. All sides of the House would agree that to achieve good results in these matters a right interpretation of the facts is essential. Often, such an interpretation will turn on knowledge of the situation in the country from which the applicant comes. Such knowledge will include the degree of persecution carried out by a government and the degree of persecution that may be carried out by other non-governmental parties. If these factors are to be considered properly, we ought to follow the Canadian model of an independent commission to consider the situation in applicants' countries of origin. That would be the commission's first minimum function. Later, no doubt, it could take on a wider remit.
Baroness Scotland of Asthal: My Lords, I have had a formidable array of speakers against me this evening. We all enjoyed the very robust debate at the last Committee session, which lasted well over two hours. I note that it is 11.10 p.m., so I will adopt the stance taken quite often by the noble Lord, Lord Kingsland, of trying to be telegraphic in my responses.
I shall reiterate the procedure, because it is important to bear in mind the context. All the applications that will be subject to this procedure will have already undergone intensive scrutiny. Initially they will be viewed by Home Office officials to determine whether the case is sound. Then there will be a complete oral hearing before the adjudicator. During today's debate, proper applause was given to adjudicators' hard work and the efficacy with which it is done. I note the comments of the noble Lord, Lord Joffe, about part-time adjudicators, but I assure him that all adjudicators operating in the system are well trained and well honed on immigration issues. They discharge their duty with just as much care and rigour as do the full-time appointees.
After that scrutiny, if the adjudicator feels that leave should not be granted and refuses the application, there is a second pair of judicial eyes. The decision is reviewed by the president or vice-president of the tribunal. The third pair of eyes are those of the High Court judge. I reassure your Lordships that I am more than content that by the time the proceedings reach the statutory review stage, there will have been the opportunity for a fair and public hearing, which is a right contained in Article 6 of the ECHR.
The nub of the issue is whether a paper review by the High Court judge will suffice. I hope that I can reassure your Lordships about that. A number of noble Lords have echoed the amendment tabled by my noble and learned friend Lord Archer in asking what will happen if the judge says, "I am not sure. In
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essence, there may be something in this". Our expectation is that in those circumstances the judge should refer the matter back to the IAT for it to determine the issue.
Of course, that will have to be done in accordance with rules. I cannot say that the civil procedure rules will be in a certain format. A number of your Lordships will know that the civil procedure rules are the province of the committee. However, our expectation is that the application would consist of a written argument, the tribunal's written notice of decision and a copy of the application for permission to appeal to the tribunal, including the adjudicator's written determination. Your Lordships will remember from our last debate that it is not proposed that the Home Office should have a right of reply at this stage. The application will be determined on the evidence produced by the appellant only.
Once an application is lodged, a judge looking at the papers will either affirm or reverse the tribunal's permission decision and provide written reasons for his decision. If the judge thinks the applicant may have an arguable case, rather than adjourn for an oral hearing—which would be the trigger for sending the case back to the tribunal for an appeal to allow proper consideration, including oral arguments—the rules should provide that it should then be heard by the IAT. That is not a removal of the opportunity for oral argument. That argument is simply being transferred to the IAT, which we consider to be the proper place, giving the speed and efficacy that would better suit the needs of the applicant's case.
We do not believe that that involves dumbing down, as has been suggested. It does not involve lowering the standard that we would reasonably expect for our judiciary and the case law to operate. It demands careful scrutiny.
11.15 p.m.
Lord Judd: My Lords, I am sure that we are all grateful to my noble friend for the characteristically considerate way in which she is replying. We are encouraged to take the concept of joined-up government seriously. In another sphere of government—in education—we are hearing a great deal these days about the importance of excellence. In the administration of justice, is not excellence an essential ingredient? Is not the consideration here that ultimately we are playing down the role of excellence in the consideration of these matters?
Baroness Scotland of Asthal: My Lords, I hear what my noble friend says, but his argument will be listened to with some alarm by the current members of the IAT, who have a very high level of probity and have had many plaudits for their excellence. We do not see that it is diluted in any way. Noble Lords will know that the IAT is a specialist tribunal, honed in relation to this type of law. It has all the expertise that one would wish to be directed to the consideration of these issues. I am always tempted to be persuaded by my noble friend, but on this issue I must forcefully part company with him.

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The arrangements we envisage will enable hearings to be heard more quickly, more efficiently and, therefore, we believe, more effectively, without losing any degree of probity. Although we cannot accept the amendments as drafted, we of course understand their import and why they have been pursued to this stage.
The noble and learned Lord, Lord Archer, asked about the role of the two lay members. I must tell him that lay members often enhance the acuity with which lawyers look at and understand the rule of law. There is even an argument for extending the lay element in other parts of the judicial process to enhance the grounded nature of the delivery of justice. I would not like the noble and learned Lord to labour under any misunderstanding as the Government indeed believe that lay members can make a valuable contribution in this regard.
The point on the point of law is clear. I do not want to reiterate everything that I said in Committee, but the question of the mixture of law and fact is often interpreted by some as a question of fact when, in fact, the court itself interprets it as a point of law. The IAT has been very careful in its more recent judgments to clarify how the interpretation will be used. There may well be a misconception about the IAT's current grant of permission, but I assure noble Lords that it is indeed on a point of law. That is being reiterated in the current provision.
I turn to the point on Scotland made by the noble Lord, Lord Kingsland. I regret that we cannot accept this amendment, simply because only the High Court in England and Wales will be required to issue a certificate, under Clause 99(3)(d), if the judge thinks that the application has no merit. It is not proposed, following consultation with the Scottish Executive, to place an equivalent requirement on the Court of Session to issue a certificate as the legal aid arrangements in Scotland are different from those operating in England and Wales. It will of course be open to the Scottish Executive, if they think it right and so choose, to replicate or mirror certain conditions in relation to penalties.
In relation to Amendment No. 59, we believe that statutory review should bring an end to cases in which leave is not granted because of lack of merit. On such matters there should not be further appeal. If leave is granted and the matter goes back to the IAT, the normal route of appeal will continue.
I am conscious that it is now 11.25 p.m. I hope that I have said enough to reassure your Lordships on these matters. I rely on everything that I said in Committee. I looked very carefully indeed at the representations made at that point, and I have listened very carefully this evening to the further representations by noble Lords. I assure your Lordships that we can deal efficaciously with this matter by using the rules. Proper rules will be made which, as noble Lords know, will include consultation with all the stakeholders, to ensure that they are robust, efficacious and actually deliver what we wish. Although I cannot prejudge what the rules committee will do, I can reasonably anticipate that it will do as I have just outlined.
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I therefore invite noble Lords not to press these amendments, and not to bring the matter back on Third Reading.
Lord Joffe: My Lords, I am not sure that the Minister replied to my last question; she may have done but I misunderstood. The question was whether she envisages that the test which judges apply in statutory reviews will be the same as that which the tribunal currently applies in determining whether to grant leave to appeal.
Baroness Scotland of Asthal: My Lords, we envisage that it will certainly cover all the judicial review remedies, and the rules that we shall put forward—I should like to be precise in assisting the noble Lord in relation to them—should cover the point fully.
One of the wonders of truncating a speech is that one then cannot find the precise paragraph one needs. I hope that I may write to the noble Lord on the matter. I undertake to do that. However, I shall probably find the relevant paragraph once I have sat down.
Lord Joffe: My Lords, I am grateful to the Minister for her usual courteous response to the issues that I raised. She has assured us that she has great confidence in the adjudicators but that confidence is not shared in the respective reports of Sir Andrew Leggatt and Sir Jeffery Bowman. Sir Andrew Leggatt drew attention to the fact that it was totally illogical for the lay members to determine points of law when they would be better used in helping to determine matters of fact. The Sir Jeffery Bowman report refers to appeals being decided in a short time leading to standardised replies and wrong conclusions. As I say, the Minister has confidence in the adjudicators, but in the light of the findings of the reports I mentioned, I am not convinced about the matter.
The Minister will have noticed the support for the amendment from all quarters of the House and the concern that is felt about potential injustice in this area. I should like time to reflect further on the Minister's comments and to study the letter that she will send me. However, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 to 59 not moved.]
Clause 102 [Pending appeal]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 60:
Page 57, line 5, at end insert "(or when it lapses under section 97)"
The noble Lord said: My Lords, Clause 102 explains when an appeal is pending and when it ceases to be pending. This is important for a number of reasons. For instance, under Clause 76 an appellant is protected from removal while an appeal is pending. For the avoidance of doubt, government Amendment No. 60 provides that an appeal which is lapsed is no longer pending. I beg to move.
On Question, amendment agreed to.
Clause 103 [Notice of immigration decision]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 61:
Page 57, line 27, after "include" insert "rebuttable"
The noble Baroness said: My Lords, Amendment No. 61 stands in my name and that of the noble Lord, Lord Dholakia. This amendment and, indeed, most of the remaining amendments that I shall move tonight, was tabled in Committee but was not moved at that stage as we reached agreement to finish the seventh Committee day at a fairly reasonable hour in order to allow noble Lords to debate the Enterprise Bill. My noble friend Lord Kingsland has the somewhat dubious pleasure of discussing both the Enterprise Bill and this Bill.
Amendment No. 61 would ensure that presumptions about the service of a notice about an immigration decision would be rebuttable. That is not clear on the face of the Bill as the word "rebuttable" is not used. That is in contrast to Clause 70(4) where it is made clear that the presumption that someone is a "serious criminal" is explicitly said to be "rebuttable". If that is the case—and it needs to be made plain in Clause 70—does that mean that the presumption in Clause 103 is not rebuttable? If not, why not? I beg to move.
11.30 p.m.
Lord Goodhart: My Lords, as the noble Baroness pointed out, this amendment also stands in the name of my noble friend Lord Dholakia. All I need say is that I believe this to be a very simple and straightforward amendment and one that we support for the reasons already given.
Lord Filkin: My Lords, I thank both speakers for their contributions. The noble Baroness has posed a fair question, to which I shall seek to give a clear and succinct answer. As the House knows, an applicant can remain in a country lawfully until such time as he is notified that his application or appeal, if he has made one, has been refused. That is an important principle. But without presumptions about service, that safeguard allows the unscrupulous to abscond in the knowledge that they can remain lawfully in this country until immigration officials catch up with them.
We believe that officials should be entitled to rely on the addresses that they are given by applicants. Service of a notice, or appeal determination, at the last address notified should be presumed to be valid. The time limit for appealing will begin at that point, and we can consider taking action if the applicant neither appeals nor leaves the country. But if the presumption is rebuttable, the applicant could simply say, "I changed address and did not receive your notice". The fact that the applicant did not trouble to inform us of his change of address would be irrelevant. He would have to be allowed 10 days in which to think about whether to appeal or abscond again; or, indeed, do both.
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Legislation should not permit such abuse. A person who has been refused leave to remain should either appeal or leave the United Kingdom.
It might be said that an absolute presumption could harm the innocent—if, for example, the applicant happened to be visiting relatives when the letter was delivered, he could lose the right of appeal. That is not true. There is provision for late appeals. The Home Office is obliged to pass the papers to an adjudicator who decides whether or not the appeal should proceed late. If the applicant can provide a reasonable explanation—a rebuttal of the presumption of good service would usually be a reasonable explanation—the appeal will go ahead without prejudice to either side. Rebuttable presumptions would assist abusers, while not providing any significant benefit to others. For those reasons, we do not support the amendment.
Baroness Anelay of Sit Johns: My Lords, I am grateful to the Minister for his explanation. As ever, I shall carefully consider his response. I appreciate that the Minister is trying to explain how the Government are attempting to avoid an abuse of the system by use of such phraseology. I am a little concerned about his explanation that there is a way out of any problem because there is provision for late appeal. We have already discussed the difficulties involved with late appeals, so I shall have to consider that point. However, for this evening, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 [Rules]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 62:
Page 57, line 37, leave out "or require"
The noble Baroness said: My Lords, I should mention that this amendment is also tabled in the name of the noble Lord, Lord Dholakia. In moving the amendment, I shall, with the leave of the House, speak also to Amendments Nos. 63 to 66 and 68.
The purpose of these amendments is to ensure that the procedure rules contain provisions that enable but do not require adjudicators to dispose of a case in a particular way, and thus to preserve the important principle that the Immigration Appellate Authority should have the independence to regulate the procedure to be followed in relation to a particular appeal.
Why have the Government introduced the new word "require", which would remove the adjudicator's or the IAT's discretion? Paragraph 210 of the Explanatory Notes merely say that this is a re-enactment "with amendments". It does not refer to the fact that the fettering of discretion is being introduced by the use of the word "require", which is rather a change.
The purpose of Amendment No. 68 is to prevent people suffering prejudice in the appeal process in circumstances where it is simply not their fault that service of a document has not been effective. I beg to move.
Lord Goodhart: My Lords, I rise simply to express our support for this group of amendments, to which my noble friend Lord Dholakia put his name.
Lord Brooke of Sutton Mandeville: My Lords, assuming that the Minister resists these amendments, is there a distinction of significance between the words that will remain as they are currently drafted—in other words, "enable or require"—and those at line 27 on page 58, where the words "enable or require" are reversed to read "require or enable"?
Baroness Scotland of Asthal: My Lords, I do not believe that there is any significance in that distinction. I hope that that assists the noble Lord. I am very grateful to him for pointing out that transposition of the two words. I am sure that the draftsmen will have that brought to their attention.
Clause 104 allows the Lord Chancellor to make rules that regulate the exercise of the right of appeal in Part 5 of the Bill and prescribe the procedure to be followed with an appeal. The clause also sets out particular matters that may be included in the rules.
We have taken a power so that the procedure rules can require adjudicators and the tribunal to act in specific ways. The Government consider it important, in clearly specified circumstances, to require adjudicators to follow a particular course of action. The expansion in the number of adjudicators and appeals hearings means that it is becoming increasingly important that the rules require adjudicators and the tribunal to act in certain ways to avoid inconsistency and confusion. There are now 107 full-time adjudicators and 458 part-time adjudicators. We anticipate a total future complement of at least 170 full-time adjudicators and approximately 440 part-time adjudicators. I am sure that noble Lords appreciate that rules requiring adjudicators and the tribunal to act in certain ways are in no way an interference in judicial decision-making. That would be wholly unacceptable. They simply provide the appropriate framework. In addition, the Government consider that it is important to require adjudicators to avoid delays in proceedings that are caused by either party. That is why we included Clause 104(2)(h), which allows rules to,
"make provision about the treatment of adjourned appeals by an adjudicator (which may include provisions requiring an adjudicator to determine an appeal within a specified period)".
That power could be used to require an adjudicator, for example, to determine the appeal on whatever papers he has at that date. That would avoid multiple adjournments in proceedings.
I turn to Amendment No. 68. For the appeals system to reach an end point, presumptions about service need to be made: for example, when decisions
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are notified by post. Presumptions are needed to enable the Secretary of State to begin taking enforcement action to remove failed appellants from the UK. Examples of such presumptions are provided for in rules 47 and 48 of the current rules. Those rules allow for presumptions about the address for service and time of receipt of documents.
There is an out-of-time procedure for lodging notice of appeal to the adjudicator and the tribunal in the current rules. If the adjudicator or tribunal is satisfied that there are special circumstances in which the appellant was not able to lodge his application for appeal within the usual time limits, the appeal will go ahead without prejudice to either side. I hope that that better explains the clause.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for her explanation and to my noble friend Lord Brooke of Sutton Mandeville for his eagle eyes and for noticing the transposition of words.
I shall consider the Minister's response between now and Third Reading. I am concerned that she adduced that an expansion in the number of people doing the adjudication means that there is a requirement to avoid inconsistency. That is what I understood her to say. She later went on to say that it would be necessary to provide the appropriate framework.
One could perhaps argue in response that, if a substantial extra number of people have been appointed, perhaps the solution to the issue is to provide proper training so that there is consistency in approach, rather than having rules which direct people to act in a particular way. That is a matter that I would like to consider between now and Third Reading. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 to 66 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 67:
Page 58, line 7, leave out from first "adjudicator" to end of line 8.
The noble Baroness said: My Lords, in part, the Minister referred to this amendment during debate on the previous group. I hope that your Lordships will bear with me if I say simply that I still need to ask some questions in relation to this matter.
Amendment No. 67 would remove the words allowing rules to prohibit adjudicators from adjourning in certain circumstances. However, during debate on the previous group, the Minister was not able to answer my questions: what are the circumstances in which the Government do not expect adjudicators to adjourn, and why do the Government wish to prevent adjudicators from adjourning? Is it not the case that adjournments are caused not only by appellants but also by Home Office failures; for example, the failure to join evidence submitted by appellants to the appellant's Home Office file—something as simple as that; a bureaucratic mistake?

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Another example is the failure to consider that evidence before the hearing itself. Is it not the case that the Home Office's conduct is, indeed, the reason for a significant proportion of the adjournments that take place?
If one was cynical, one could say that perhaps the reason behind this provision is that the Government are concerned about the quality of their adjudicators. After hearing the earlier remarks of the Minister, I certainly hope that that is not the case and that they do have confidence in their adjudicators. However, I believe there is a danger here that one may find that the interests of speed are imposed over the interests of justice. I beg to move.
Lord Brooke of Sutton Mandeville: My Lords, assuming that the Minister resists this amendment, again, with the same hypothesis as I established during debate on the previous amendment, I have a stylistic point to make. Perhaps I may illustrate it by notional substitution of some other words: "The Lord Chancellor may make rules which may make provision for attendance of a Peer or Peers in the House of Lords (which may include provision prohibiting a Peer or Peers from attending except in specified circumstances)". That would be an absolutely ludicrous way of expressing that thought on the part of the Lord Chancellor.
Earl Russell: My Lords, I wish to add a word in support of the amendment. The difficulty with this method of legislation by regulations specifying circumstances is that one can never possibly foresee all the circumstances. To take a case which I hope is reductio ad absurdum, although I cannot guarantee that it is, let us suppose, for example, that the regulations do not specify an attack with nerve gas by members of Al'Qaeda. It would be highly unreasonable to expect a court not to adjourn in those circumstances. There must be a discretion; one cannot do it all by specifying every detail in regulation because then one can only lock the stable door after the adjudicators are dead.
Baroness Scotland of Asthal: My Lords, again, I thank the noble Lord, Lord Brooke, for his comment in relation to the drafting. Clause 104(2)(g) enables the rules to contain provisions making clearer in what circumstances adjournments will be granted by adjudicators. The rules will not impose obligations on adjudicators unless we can justify them as part of that process. Therefore, we shall seek to ensure that adjudicators and other stakeholders are used to ensure that an appellant is not penalised for delays which are not of his making. Delay can be caused by both parties to the proceedings. We do not suggest that appellants are more responsible than other parties for those delays. Delay is bad for the process and bad for the parties per se.
The current procedure rules already set out provisions about adjournments, for example in Rule 31(1) that the IAA shall not adjourn the hearing unless it is satisfied that refusing the adjournment would
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prevent the just disposal of the appeal. We shall simply be building on those provisions to try to adduce a degree of clarity.
11.45 p.m.
Baroness Anelay of St Johns: My Lords, again I am grateful to the Minister for her response. I am grateful to my noble friend Lord Brooke of Sutton Mandeville for his attention to the drafting, and to the noble Earl, Lord Russell, for his support. I agree that the difficulty is that one cannot specify all circumstances in regulations. They are blunt instruments.
I am grateful to the Minister for making clearer the Government's approach as to how the rules will operate and how they will be framed. I am particularly grateful to her for recognising that delay is a bad thing and that the Government do not allege that there is any greater delay caused by appellants than by other parties. That was most helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
Clause 107 [Grants]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 69:
Page 59, line 29, at end insert—
"(c) legal representation or advice and assistance with applications for support and appeals; against refusal to grant support."
The noble Baroness said: My Lords, in moving Amendment No. 69, which stands in my name and that of the noble Lord, Lord Dholakia, I shall speak also to Amendment No. 70.
Both these amendments address the question of how grants should or should not be used in assisting those who apply for asylum. Amendment No. 69 would add to the list of reasons why the Secretary of State may make a grant the important issue of legal representation or advice, and help with making applications for support and help with appeals against refusal to grant support to the asylum seeker.
This is, indeed, important work carried out by voluntary organisations. As yet, it does not appear clearly on the face of the Bill. I invite the Minister to give the House an assurance that those activities by voluntary organisations will be covered by Clause 107. It is important that we have clarity from the Government on those matters because no doubt there will be activities which qualify for a grant. We have to know exactly what those activities are and have certainty over whether the Government will be able to approve such grants.
However, there will also be activities which should not be funded by grants under this section. We need to know how the Government will make decisions about such activities. To probe the issue, I have tabled Amendment No. 70, which will prohibit the use of grants made under this clause for any political activity in relation to assistance given to asylum seekers whether that assistance relates to their right of appeal under Part 5 of the Bill or concerns welfare services.
The general question is how do the Government expect this clause to operate. Do they expect political activity to be excluded from funding under the provisions of this clause? Will there be guidelines published explaining how the Secretary of State will exercise his judgment in these matters? Noble Lords will be aware of the public concern caused over the past couple of weeks by the award of £340,000 by the community fund to the National Coalition of Anti-Deportation Campaigns.
The Secretary of State for Culture, Media and Sport is reported in the Sunday Telegraph this week as having told the press that she would be taking measures to ensure that future grants would not be awarded to such groups engaged in political activities. I think that that gives a flavour of the Government's approach on these matters, which makes me cautious about looking at the way in which Clause 107 might operate.
It is important that we have clarity from the Government on questions of how public money should be allocated to voluntary or community groups under this clause. I firmly believe that I have made clear in Amendment No: 69 that some activities certainly should qualify for grants under Clause 107.I beg to move.
Lord Goodhart: My Lords, the name of my noble friend Lord Dholakia is down in support of Amendment No. 69, although not of Amendment No. 70.
I raise one point which I am not sure is covered in Clause 107 or is adequately dealt with by Amendment No. 69. If, as it appears, Clause 107 indicates—although it does not expressly say so—that the grant is for the purposes of advice or assistance to persons who have a right of appeal, there could be a problem with Clause 92. That clause specifically states that people whose asylum claims are held to be clearly unfounded cannot appeal.
That exclusion was justified on the basis that judicial review would still be available. Obviously, in order to make an effective application for judicial review, there has to be legal advice or assistance. It might be helpful if Clause 107 specifically made clear that that grant could be made to organisations providing advice or assistance to persons seeking judicial review against a decision which could not be appealed against.
Earl Russell: My Lords, I am in entire agreement with the point made by my noble friend Lord Goodhart, which I hope will be taken account of. Subject only to that proviso, I welcome the amendment. I have been wondering a great deal of the afternoon how people, who by definition are unable to meet essential living needs, are going to be in a position to contest refusals of support which may be extremely serious.
The amendment does not go all the way towards answering that question. But it makes a significant contribution to it, which I welcome. If that contribution could be combined with the point made
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by my noble friend Lord Goodhart then we might have a good workable amendment for a later stage of the Bill.
Lord Filkin: My Lords, Clause 107 allows the Government to continue to provide discretionary grant in aid via the Home Office to voluntary organisations in the same way and for the same purposes as the existing arrangements under Section 80(1) of the 1999 Act. For example, there are three organisations currently funded to provide assistance—the Immigration Advisory Service, the Refugee Legal Centre and the Northern Ireland Law Centre.
Free legal advice and assistance is already available for applicants for support from solicitors or not-for-profit organisations funded by the Legal Services Commission. There is no reason to duplicate that.
Resources for the provision of legal representation, however, must be prioritised. It is not policy to seek to extend this to asylum support appeals. The provision of publicly funded representation for asylum support appellants would place them in a better position than welfare benefit appellants who do not qualify for such legal aid representation. We see no reason for making a distinction between the two.
Legal Services Commission funding already provides for legal advice and assistance but does not extend to representation before asylum support adjudicators. The proposed amendment would be inconsistent with this policy.
The issues involved in asylum support appeals are not sufficiently complex to justify publicly funded legal representation being provided. However, in exceptional cases where the issues are considered complex or particularly complex LSC funding representation can be made available. Clause 107 therefore is intended to maintain only the existing arrangements for the funding of appeals.
The Government sympathise with the sentiment behind Amendment No. 70. But we think it is unnecessary. Clause 107, like its predecessor Section 80(1), allows for the grants to remain subject to terms and conditions. One condition currently imposed under Section 80(1) is that money shall not be used to fund any party political activity; for example, the current conditions for granting aid to the Northern Ireland Law Centre. It states explicitly the grant in aid may not be used for any party political purposes. We think that that is right, but other conditions may be appropriate, such as the stipulation of an equal opportunities policy or a prohibition on funding a case that is already funded by grant-in-aid moneys by another organisation. We see no value in giving undue prominence to one condition by writing it into the Bill when the Bill already provides for a variety of conditions to be imposed.
Notwithstanding all that I have said, the views of my right honourable friend the Home Secretary are pretty clear on some of the more extreme forms of reported activity, but I do not think that we are discussing such activity with respect to those three responsible organisations. Of course, those organisations could be

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seen to be engaging in political activity when they give advice to opposition parties on challenges to government legislation such as the Bill. Although there may be occasions when I wish that that were not the case, I should not for a second think it right to advance that as an argument against them.
I shall have to write to the noble Lord, Lord Goodhart, on the point that he raised. I invite the noble Baroness to withdraw her amendment.
Baroness Anelay of St Johns: My Lords, I shall certainly do so in a few moments. I am grateful to the Minister for his response. I listened carefully to what the noble Lord, Lord Goodhart, and the noble Earl, Lord Russell, said about the limited application of my amendment. They made a valid point that I must consider between now and Third Reading.
I am grateful to the Minister for his clarity in explaining where the Government believe that legal assistance is properly available in various circumstances. I was a little concerned when he talked about circumstances in which the asylum seeker will be facing questioning that is insufficiently complex to warrant publicly funded legal assistance. From my experience of sitting for about 13 years on social security appeal tribunals—and child support tribunals when they were introduced later—there is always the worry that what appeared to be a simple issue for a layman such as myself who sits on such tribunals for week after week is extremely complex for someone for whom it is a once in a lifetime experience. I shall consider that carefully, but I am grateful to the Minister for providing greater clarity about the Government's expectation of the lack of grants for political activity. I beg leave to withdraw the amendment.
[Amendment No. 70 not moved.]
Clause 112 [Special Immigration Appeals Commission: Community Legal Service]:
Lord Avebury Lord Avebury moved Amendment No. 71:
After Clause 112, insert the following new clause—
"ASYLUM SUPPORT ADJUDICATORS
In paragraph 2(1) of Schedule 2 to the Access to Justice Act 1999 (c. 22) (Community Legal Service: courts and tribunals in which advocacy may be funded) the following shall be inserted after paragraph (ha) (and before the word "or" which appears immediately after that paragraph)—
"(hb) Asylum Support Adjudicators,"."
The noble Lord said: My Lords, in view of the Minister's last remarks, I am not optimistic in moving this amendment, but, with respect to him, I am not sure that he was right when he said that the Legal Services Commission has discretion to fund representation at asylum support adjudicator appeals. As I understand it, the Law Society, the Immigration Law Practitioners' Association and the Commission for Racial Equality have written to the LSC to ask for public funding for such representation, and have been told that that is a matter for the Government. So the discretion that the Minister claimed for the LSC to fund such appeals is not apparent to the agencies working on them.
With respect to the Minister, this is a complex area of the law, with a growing amount of case law and substantial precedents from the High Court. The issues that come before the High Court are those of destitution and starvation and breaches of the United Kingdom's obligations under the ECHR and other instruments, such as the Convention on the Rights of the Child.
I refer only to one case: that of Husain v. Asylum Support Adjudicators, in which the appellant appeared unrepresented and in handcuffs. Because his NASS accommodation had been withdrawn, he had no address for release on bail and was kept in custody. But the decision to withdraw NASS support and accommodation was later overturned by judicial review, and the High Court found that NASS was a civil right under Article 6 of the ECHR and that withdrawal of support could interfere with asylum seekers' Article 3 rights. That was noted by the Joint Committee on Human Rights, and the Government acknowledged that the withdrawal of support could raise issues under Article 3 of the ECHR. People should be capable of representation. I beg to move.
Midnight
Baroness Scotland of Asthal: My Lords, funding from the Community Legal Service—formerly legal aid—is not generally available for representation before a tribunal. However, funding has been made available for certain tribunals at which it is considered that legal representation is necessary. For example, the Bill extends public funding to representation before the Special Immigration Appeals Commission because the liberty of the appellant is at stake.
The constraints on the Community Legal Service's budget are such that we have had to order our priorities. We can extend public funding only if it is necessary to do so. Community Legal Service funding does not extend to representation before asylum support adjudicators, and it would not be appropriate to extend public funding to the provision of such representation.
The Community Legal Service provides free legal advice and assistance from solicitors or not-for-profit organisations funded by the Legal Services Commission to asylum support appellants, prior to the hearing of their case. Public funding for representation at asylum support appeals would put such appellants in a better position than those refused social security and other welfare benefits who do not qualify for free legal representation at their appeals to tribunals.
I hope that, with that explanation, the noble Lord will withdraw the amendment.
Earl Russell: My Lords, the Minister has just made the same point as that made by the noble Lord, Lord Filkin, about creating a situation for social security applicants that was different from that of asylum seekers. So far as it goes, the point has merit. However, applicants who are not from this country, are not familiar with our system and, often, do not speak our

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language are at a corresponding disadvantage to native British applicants. An inequality one way might be compensated for by an inequality in the other.
Baroness Scotland of Asthal: My Lords, I understand what the noble Earl says. However, he will know that there are many people in our country who are similarly disadvantaged when they appear before the welfare benefit, social security and other tribunals. Many of them have difficulty with the language and face other disadvantages.
I reiterate to the noble Earl what I said: appellants will get legal assistance and advice prior to the hearing. That advice is available from solicitors and not-for-profit organisations, funded by the Legal Services Commission, who can assist people prior to their hearing. There is no legal representation for the hearing itself.
Lord Avebury: My Lords, I am not sure why that information could not have been given to the agencies when they wrote asking whether public funding would be available. It would have been simple to explain that public funding could be made available for those seeking advice prior to the hearing, even though they could not be represented at the hearing itself. That would have given some reassurance to those concerned with such matters.
The Minister has not really addressed the problem raised by the Joint Committee on Human Rights. Withdrawal of support and, therefore, appeals to the ASA are matters of human rights. The Government acknowledged that. However, I shall not persuade the Minister at this late hour. We shall consider what she said and, if necessary, come back to the matter at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 152 [Money]:
[Amendment No. 71A not moved.]
Clause 154 [Commencement]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 72 to 74:
Page 90, line 5, at end insert—
"( ) section 37,"
Page 90, line 12, at end insert—
"( ) section 55,"
Page 90, line 18, leave out "16" and insert "22"
The noble Lord said: My Lords, these are minor amendments which provide that Clauses 37 and 55 and paragraph 22 of Schedule 7 will be commenced on Royal Assent.
Amendment No. 72 enables Clause 37 local authorities to contract with us or our contractors in respect of accommodation centres. It is our intention to open trial accommodation centres as soon as possible, and we would not want this to be delayed by local authorities' inability to contract with us to provide, for example, services at accommodation centres.
Amendment No. 73 ensures that the amendments to Section 99 of the Immigration and Asylum Act 1999 that Clause 55 of the present Bill makes can come into effect as soon as practicably possible. This will enable the local authorities, if they wish, to have early discussions with the national asylum support service about the provision of induction centre accommodation.
Amendment No. 74 is minor and consequential, re-numbering a reference from paragraph 16 of Schedule 7 to paragraph 22 of Schedule 7 in line with the numbering of clauses in the current draft Bill. I beg to move.
On Question, amendments agreed to.
Schedule 3 [Withholding and Withdrawal of Support]:
[Amendments Nos. 75 and 76 not moved.]
Earl Russell Earl Russell moved Amendment No. 77:
Page 100, line 17, leave out "to apply or"
The noble Earl said: My Lords, Amendments Nos. 77 to 79 deal with Henry VIII powers arising in paragraph 15 of Schedule 3. The schedule authorises the withdrawal of various forms of mainly local authority support. It has to be defined in terms of persons and power. It is a list of persons who may not receive it and of types of support they may not receive.
Amendment No. 77 deals with persons. It removes the power to apply Schedule 3 to any new class of person. Amendment No. 78 changes the words "add or remove a provision"—that is, in relation to types of support—to "remove a provision". Therefore, the Government would be allowed to remove the ban in receiving a particular type of support but not to add a new type of support which may not be received.
Amendment No. 79, which is to leave our sub-paragraph (c) of paragraph 15, takes away the power to add, amend or remove a limitation or exception to paragraph 1(1).
The House will be familiar with my views on this method of legislation. It gives the Government what they like; that is, flexibility. But their flexibility is everyone else's inflexibility. These powers are extremely widely drafted. I recall, when dealing with a similar power, asking the Minister to admit that it authorised the Government in future circumstances to deprive all Welshman of the right to social security. The Minister duly made the admission because it was plain that that was the effect of the clause.
Anyone could be added to this clause, and under the powers in Amendment No. 77 the Government could say that everyone whose name began with the letter A was not to be entitled to all these forms of support. I think that that is a degree of flexibility greater than I hope the Government will claim is needed.
There may be many other forms of help, particularly under the mental health Acts, which it could be dangerous to deprive groups of people of, as well as disadvantageous and unfair to them. The power to add, amend or remove authorises the Government to dismantle most of the local authority social services

1555
systems brick by brick, without further legislation. If the Government would specify what they really wanted to do, usually these things sound a good deal less threatening. But the trouble is, when one leaves power in Acts of Parliament which are so generally worded, it is like going about a war landscape strewing mines. They are left lying there for people to tread on. This was brought to my attention when students were disentitled to social security, which I believe is the most disastrous decision in higher education made since 1988—and that is saying something—under powers which no one had ever envisaged being used for this purpose.
If there is anything that the Government genuinely particularly wish to do with these powers, maybe they will tell us what it is and draft the Bill so as to allow them to do what they want to do and not to allow every future Government of every future complexion to do whatever they like to do. That really would be a way to make Parliament redundant. I beg to move.
Lord Filkin: My Lords, what the Government want to do with this amendment is essentially to achieve what the whole benefit shopping measures in the Bill set out to do—which, as the House knows, is essentially to protect local authorities from burdens or obligations in terms of providing support in the particular examples we have talked about in the past on numerous occasions.
Schedule 3 is a complex area of law in what is an ever-evolving area and paragraph 15 provides the flexibility to allow it to operate flexibly.
An illustration of why the power is necessary is given by the further amendment that we have to bring in as a result of the legal case—I speak from memory—where Bristol City Council was found as a result of a court judgment to have been placed under a burden to respond to that court judgment when it believed that it ought to have had no obligation to do so. As a consequence, we had to bring in further amendment to do that. We had not spotted that particular issue at the time. It is quite plausible that there will be other issues of that type that it is not possible to spot at this time, but which will require action to achieve the objective which Schedule 3 has been drafted to address.
However, because these are powers of potential significance, albeit that they may never be used—we do not know how often they would be used—the affirmative procedure will have to be used to put the measure relating to them through both your Lordships' House and another place. Therefore, in short, it is entirely possible that new classes of person may emerge in the future to whom it is right to apply Schedule 3. It is also possible that other forms of support or assistance might need to be withheld. If the whole of paragraph 15(c) were removed, an extra exception—an addition—in paragraph 2 could not be made except by primary legislation.
For the reasons that I have advanced and with the protections which are clear through the affirmative procedure, we believe that it is right that the
1556
Government have the flexibility to protect the central thrust of what Schedule 3 has been put on the face of the Bill to achieve.
Earl Russell: My Lords, I thank the Minister for that reply. I have heard it before. I am afraid that he has heard my reply before too and I will try to make it as brief as possible. First, does the Minister accept that these clauses may be used in future to do things which he would deplore as much as I would? I ask him genuinely to think about that question before he responds to it.
Secondly, does he accept that the affirmative resolution is absolutely no protection until it is widely recognised that this House is free to vote on it when it has it? And thirdly, perhaps I may remind him, with the greatest brevity, of the information that I have already put before him about the Eurostat figures on benefit levels and the Home Office research on the effect on welfare benefits on applications. I am sorry to hear him yet again repeat this argument about benefit shopping. It simply does not stand up to the evidence. But I am not going to divide the House at a quarter past twelve. I beg leave to withdraw the amendment but the questions are ones the House will hear again.
Amendment, by leave, withdrawn.
[Amendments Nos. 78 and 79 nut moved.]
12.15 a.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 80:
Page 101, line 19, leave out "116(4)(c)" and insert "128(4)(d)"
The noble Lord said: My Lords, there are 28 amendments in the group. I have a lengthy speaking note, which I am happy to go through if your Lordships so require, but, given the hour, a brief outline of the amendments may suffice.
Amendment No. 80 is a minor and technical amendment. Amendments Nos. 81 to 100 are consequential amendments; they are minor, technical and drafting amendments. Amendments Nos. 102 to 107 relate to provisions that are repealed elsewhere in the Bill and so appear in the repeal schedule. For example, Amendment No. 106 simply changes references inserted by the Immigration and Asylum Act 1999 to references to the Bill. I suggest that it is not necessary for me to go into the amendments at greater length. I beg to move.
On Question, amendment agreed to.
Schedule 7 [Immigration and Asylum Appeals: Consequential Amendments]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 81 to 101:
Page 105, line 24, at end insert—
"In section 33(4) of the Immigration Act 1971 (c. 77) (pending appeal: interpretation) for paragraphs (a) and (b) substitute "in accordance with section 102 of the Nationality, Immigration and Asylum Act 2002 (pending appeals)"."
Page 105, line 25, leave out "the Immigration Act 1971" and insert "that Act"
Page 105, line 28, at end insert—
"In paragraph 4(4) of that Schedule (examination and detention of documents) for "an appeal under this Act" substitute "an appeal under the Nationality, Immigration and Asylum Act 2002"."
Page 105, line 40, at end insert—
"For paragraph 3 of that Schedule (deportation: effect of appeal) substitute—
"3. So far as they relate to an appeal under section 80(1) of the Nationality, Immigration and Asylum Act 2002 against a decision of the kind referred to in section 80(2)(j) or (k) of that Act (decision to make deportation order and refusal to revoke deportation order), paragraphs 29 to 33 of Schedule 2 to this Act shall apply for the purposes of this Schedule as if the reference in paragraph 29(1) to Part I of that Schedule were a reference to this Schedule.""
Page 107, leave out lines 36 and 37 and insert—
"16 The following shall be substituted for section 2 of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals)—
"2 JURISDICTION: APPEALS".
Page 107, line 39, leave out "an immigration" and insert "a"
Page 107, line 41, after "80(1)" insert "or 81(2)"
Page 108, line 1, after "80(1)" insert "or 81(2)"
Page 108, line 5, after "appeal" insert "against an immigration decision"
Page 108, line 11, at end insert—
"(ba) section 77 of that Act (deportation order: appeal),"
(bb) section 80(2A) of that Act (variation or revocation of leave to enter or remain: appeal),"
Page 108, line 14, after "84" insert "of that Act"
Page 108, line 14, at end insert—
"(ea) section 85 of that Act (successful appeal: direction),
(eb) section 94 of that Act (earlier right of appeal),
(ec) section 102 of that Act (pending appeal),"
Page 108, line 16, at end insert—
"(2A) The following provisions shall apply, with any necessary modifications, in relation to an appeal against the rejection of a claim for asylum under this section as they apply in relation to an appeal under section 81(2) of the Nationality, Immigration and Asylum Act 2002—

(a) section 83(4) of that Act (matters to be considered),

(b) section 84 of that Act (determination of appeal),

(c) section 85 of that Act (successful appeal: direction), and

(d) section 107 of that Act (grants)."

Page 108, line 16, at end insert—
"(2B) An appeal against the rejection of a claim for asylum under this section shall be treated as abandoned if the appellant leaves the United Kingdom."
Page 108, line 17, after "appeal" insert "against an immigration decision"
Page 108, line 20, at end insert—
"(3A) In this section "immigration decision" has the meaning given by section 80(2) of the Nationality, Immigration and Asylum Act 2002.""
Page 108, line 22, leave out paragraph 18 and insert—
"18 Section 4 of that Act (determination of appeals) shall cease to have effect."
Page 108, line 44, at end insert—
"In section 5 of that Act (procedure)—
(a) in subsections (1)(a) and (b) and (2) omit "or 2A", and
(b) after subsection (2) insert—
"(2A) Rules under this section may, in particular, do anything which may be done by rules under section 104 of the Nationality, Immigration and Asylum Act 2002 (appeals: rules).""
Page 108, line 45, leave out paragraph 19 and insert—
"19 Section 7A of that Act (pending appeals) shall cease to have effect."
Page 109, line 4, at end insert—
"In paragraph 5 of Schedule 1 to that Act—

(a) in sub-paragraph (b)(i), for "section 57(2) of the Immigration and Asylum Act 1999" substitute "section 79(3)(a) of the Nationality, Immigration and Asylum Act 2002", and

(b) in sub-paragraph (b)(ii), for "paragraph 1(3) of Schedule 2" substitute "paragraph 11 of Schedule 5"."

Page 109, line 13, at end insert—
"(2) This paragraph is without prejudice to—

(a) the effect after commencement of this paragraph of a certificate issued before commencement, or

(b) the power of the Secretary of State after the commencement of this paragraph to issue a certificate in respect of a claim made before commencement."

On Question, amendments agreed to.
Schedule 9 [Repeals]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 102 to 107:
Page 120, line 25, second column, at end insert—

"Section 4.

In section 5(1)(a) and (b) and (2), the words "or 2A"."

Page 120, line 26, second column, leave out "7A(6)" and insert "7A"
Page 120, line 51, at end insert "and (6)"
Page 121, second column, leave out lines 3 and 4 and insert—

"In Schedule 1—

in paragraph l(2)(a), the words "or charge",

in paragraph 5(1), the words "or 42", and

in paragraph 5(2)(d), the words "or charge"."

Page 121, line 10, leave out "and 119" and insert ", 66, 96, 98(2) and (3), 120 to 121 and 126 to 129"
Page 121, line 11, after "paragraphs" insert "23 to 29 and"
On Question, amendments agreed to.
House adjourned at seventeen minutes past midnight.