HL Deb 05 April 2004 vol 659 cc1679-710

8.36 p.m.

House again in Committee.

Clause 7 [Claimant's credibility]:

Lord Avebury moved Amendment No. 18: Page 7, line 23, leave out paragraph (e).

The noble Lord said: Clause 7 deals with a claimant's credibility. That is frequently an issue in asylum claims and it results in many cases being remitted to an adjudicator by the tribunal, as in some of the cases that I witnessed at the tribunal on Friday. Often, the details of a claimant's history are known only to him, as we have said when discussing previous amendments, and the "deciding authorities" have to reach the best judgment they can on the credibility of what he says.

The Government are now proposing that behaviour of certain kinds, some of which has to be a matter of opinion, is to be treated as damaging his credibility in general. The clause takes no account of the advice in paragraphs 198 and 199 of the UNHCR handbook on procedures and criteria for determining refugee status. Perhaps I may remind your Lordships of that advice. Paragraph 198 states: A person who, because of his experiences, was in fear of the authorities in his own country, may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case". Paragraph 199 states: While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case". Paragraph 205 requires an examiner to, assess the applicant's credibility and evaluate the evidence (if necessary giving the applicant the benefit of the doubt)". He would no longer be able to do that under Clause 7.

It is a matter of common knowledge that a person who has suffered torture or rape is generally reluctant to discuss his or her experience. Many claimants have what they regard as legitimate reasons for being unwilling or unable to answer questions put to them by the deciding authority. They may, for instance, feel a sense of shame at having had to leave their country rather than stay shoulder to shoulder with comrades who were also the victims of persecution. Or they may believe that something they say could jeopardise the safety of those comrades or their relatives. In fact, the IAA's own guidelines recognise that, delays in claiming asylum or revealing full details of an asylum claim, will not necessarily be due to lack of credibility … torture, sexual violence and other persecutory treatment produce profound feelings of shame. This 'shame response' is a major obstacle to disclosure. Many victims will never speak of sexual violence. or will remain silent about it for years". Subsection (3)(e) fails to recognise this, and obliges the deciding authority to treat failure to give an answer as damaging the claimant's credibility in general, and not just on the particular issue in question. The qualification that the failure must be without reasonable explanation is worthless, because obviously if the answer to the question touches on a sensitive issue, so would the explanation for refusing to answer.

I am not sure that I entirely understood what the Minister said on a previous amendment about representation at any interview where the person might be at risk of prosecution for documentation offences, and I will have to read carefully what she said. Where the asylum seeker fails to answer a particular question which he could not possibly have anticipated before the interview, he will not have advice on something which may well seriously affect his chances of gaining asylum. That is, unless the noble Baroness will say that immediately somebody is asked a question which he refuses to answer, that then triggers the right of representation at that particular interview. However, I do not think it was the intention of the Government to do that.

Turning to Amendment 19, the UNHCR handbook says: The expression 'owing to well-founded fear of being persecuted … ', by indicating a specific motive, automatically makes all other reasons for escape irrelevant to the definition [of a refugee]". That is in paragraph 39; we touched on this in an earlier amendment. In providing that passage through a safe third country should impact negatively on credibility, subsection (4) implies that any secondary motive for seeking asylum in the UK in preference to that safe country is indeed relevant to the claimant's status. The subsection is therefore contrary to UNHCR policy, as well as lacking in any logical basis.

UNHCR's global experience is that genuine refugees will often have legitimate reasons for wanting to claim asylum in a particular country. Once a person has escaped persecution, his decision to seek the protection of one state rather than another can be motivated by numerous factors, including family ties, community, language and historical and cultural links. As Mr Justice Collins, the former president of the IAT, pointed out in a written response to the consultation paper on the Bill, cited in the joint meeting by Amnesty International, the Refugee Council and the RLS, to your Lordships in relation to the Bill's Second Reading, these factors are currently recognised in our law. He said: It has been accepted [in ex parte Adimi [2000] 3 WLR 434] that there is 'some element of choice' open to an asylum seeker in a country in which he hopes to gain sanctuary. The Home Office decision letters still regularly state that failure to claim asylum in a country to which an asylum seeker has travelled (often hidden in a lorry) throws doubt on the credibility of the claim. This is difficulty to uphold, particularly in the light of Adimi. In assessing credibility, deciding authorities are already guided by the Home Office's immigration rules, which include some of the provisions of Clause 7. However, failure to answer a question, and travel through a third country, are not mentioned. It would be entirely wrong to put new obligations on deciding authorities to assess credibility in ways that are contrary to UN HCR recommendations. In fact, we believe that the whole of Clause 7 is harmful, and that by elevating Home Office guidelines to the level of primary legislation, we are fettering the deciding authorities in the exercise of their judgment and discretion on credibility, and preventing them for considering each case individually on its merits, as the convention requires.

The effect of Amendment No. 20 is to restrict the application of Clause 7 to government employees, excluding those deciding authorities which carry out an independent judicial function. That is consistent with the Government's declared policy in Clause 14 that the proposed tribunal shall be an independent judicial body. Amendment No. 21 is consequential.

I have left until last the comments by the JCHR on Clause 7 in general and on the safe third country provision in particular. In its fifth report, in paragraph 27, it said: When we first examined the Bill, this presumption seemed to us not to be logically related to the failure to take a reasonable opportunity to make a claim in a safe country. There is no reason to suppose that a person is not worthy of belief on any matter merely because he or she preferred to make a human rights claim to the United Kingdom rather than in another country. The failure to make the claim in another country might cast doubt on certain statements, but, we thought, could hardly be said to damage the claimant's credibility in relation to all statements. Imposing a presumption of damaged credibility regardless of the nature of the statement in relation to which the credibility falls to be assessed seemed to us potentially to compromise the fairness of the decision-making process".

The Government's response was that, even if' the person's credibility was deemed to be damaged, it would still be open to the deciding authority to conclude that he had made out his case. The deciding authority would still have to consider all the circumstances of the case and make the decision in accordance with the ECHR and the refugee convention. That may well be true but, if the credibility of the person on every other statement that he makes has been undermined by his choice of the UK as the country where he seeks protection, the saving may not be worth very much. I beg to move.

8.45 p.m.

Earl Russell

An applicant from Zaire once received a refusal letter that said: The fact that you say that the soldiers entered your house firing wildly seems to refute your claim that they threatened your life, and thereby severely damages your credibility". Another refusal letter, sent in 2001 to an applicant from the Congo, said: You say that you were beaten, stripped naked and left in a cell soaked in urine. The fact that you say that this constitutes torture is so incredible as to destroy the credibility of the whole of the rest of your story". Credibility is a way by which the interviewer is able to express his ignorance of the world. What he finds incredible is what surprises him. One might cite many more examples of that, and I shall not go on with them; but the Home Office seems totally unable to take on board quite how difficult people find it to tell the story of rape or torture. I do not know how many people there are present in this Chamber who have actually had the task of trying to persuade a rape victim to tell her story to the police. I have had that job three times and have succeeded once—and I have sometimes wondered whether the once when I succeeded was the once when I really failed. It is not an easy thing to do. One at least of those three victims would. I am convinced, have had her mental stability destroyed for life if she had taken my initial advice and gone ahead and told the story.

I have never had the dubious privilege of trying to persuade a victim of torture to tell her story, but one imagines that it may well be rather worse than that. Until the Home Office can take that on hoard, it is simply not living in the real world.

The point about the third country is not often enough made. If the whole foundation of one's life is cut from underneath one, one does rather care about finding some place to try to rebuild which one believes that one may actually be able to stand.

I remember once facing the noble Baroness, Lady Blatch, who was then at the Dispatch Box, on this subject. I asked her to imagine a situation in which she had to flee from this country for her life. More improbable things have happened in all countries; no country is safe for ever. I asked her to imagine that she had a daughter living in Australia but, because her plane had touched down in Dubai, she was required to remain in Dubai for life. I do not see the noble Baroness, Lady Blatch, in a veil, but she can follow the direction of an argument. She gallantly hit the bullet and said that she would be extremely grateful to be able to achieve safety anywhere.

That is what Home Office doctrine demands. In a perfect world that may be what we should all deliver, but I am a little doubtful. That is certainly not what the majority of people feel. Most people want to live where they know people, where they have friends and relatives. Most of us have relatives in more than one country. The desire for the solidarity of the family is not only a national emotion and not only good where it is a national emotion.

It is perfectly reasonable for people who have had to flee for their lives to want, within a reasonable range, some choice about where they live. For example, if before reaching the age of retirement I had had to go into exile, I would have liked to be able to live somewhere where I could teach the history of my country to people who wanted to know it. But I do not believe that to insist on a first safe country, even if it happens to be Liechtenstein, is living in the real world either.

Baroness Scotland of Asthal

I can reassure the Committee that the Government live in the real world. I can reassure the noble Earl, Lord Russell, that I live daily in the real world. I disagree with nothing that the noble Earl has said in relation to the dangers that people experience. In such a situation, as in all others, the ability to persuade and encourage people to tell the truth is always helpful because once the truth is told an informed judgment can be made. I understand what the noble Earl says about persuading people who have difficult stories of abuse to disclose them.

From 1977 until coming into the House and taking up office in 1999, I worked as a barrister in the family area. Throughout that period, I had the privilege of working with those who had suffered huge disadvantage and abuse. Therefore, I certainly understand the trauma and difficulty. However, that does not get away from the fact that those in such situations can be enabled and encouraged to tell their stories in a way that is meaningful for them and in a way that can often be a catalyst for change. It is cathartic for people to be so enabled.

A core principle underpinning the Bill is that those making asylum claims should be co-operative and honest in their dealings with the immigration authorities. Only if people are co-operative can the system operate as smoothly and as well as we want. The asylum system that we put in place must aim to achieve credibility with the public and with the genuine refugee.

A key part of delivering that system is to ensure that it deals robustly with those who do not co-operate and who try to play the system for their own benefit and to the detriment of others. Sadly, on too many occasions applicants are not as co-operative and as honest as they might be, failing to provide documents or destroying them, failing to answer questions fully, or failing to apply as soon as they can.

Of course, much will depend on the sensitivity and openness with which people are questioned. We are doing all that we can to improve the ability of those who undertake the complex task of asking those who are in a situation of certain anxiety the questions that have to be asked. We therefore consider it important to use the Bill to send out the clear message that certain types of behaviour are not acceptable and are likely to undermine the credibility of a person's claim to need protection. Clause 7 sets out various behaviours which we consider call into serious doubt the credibility of the applicant and which we therefore think the decision-makers and appellate court bodies should be obliged to take into account when assessing the asylum claim. I made it clear at the beginning that it is not determinative, because an exercise of judgment still has to take place. But these are factors which should properly be taken into account.

By listing various behaviours in primary legislation which must be taken into account when assessing the credibility of statements in support of an asylum or human rights claim, Clause 7 will give a higher profile to these issues and a framework for deciding authorities to use. But they are by no means a straitjacket. The fact that various behaviours must be taken into account does not mean that an asylum claim has to be refused where those behaviours are exhibited.

First, for several of the behaviours "reasonable explanation" proviso exists. Secondly, nothing in the clause—nothing in the clause—alters our obligations under the Refugee Convention or the ECHR. So, while we will look especially closely at the credibility of the substantive statements made in support of a claim by someone exhibiting the behaviours listed in Clause 7, if a deciding authority comes to the view that an applicant has nevertheless shown themselves to come within the scope of the Refugee Convention or the ECHR, leave will be granted accordingly. The clause will not force a deciding authority to give undue weight to any of the factors it lists; it will merely ensure that all these factors are considered in a systematic and transparent way.

Amendment No. 18 would delete subsection (3)(e), which provides that failure without reasonable explanation to answer a question asked by a deciding authority is to be taken as behaviour which damages a person's credibility.

We accept that there will be rare occasions where, for example, a traumatised person finds it difficult to give full answers to some questions on arrival. Clause 7 already caters for such situations by having a reasonable explanation defence built into subsection (3)(e). However, only the applicant can know the truth of their claim and associated matters—such as how they travelled to the United Kingdom—and therefore the general principle is that it is for the applicant to co-operate fully in establishing the truth.

It is the Government's view that where a person refuses to co-operate with our procedures by not providing information which is requested in connection with their claim and which it is in their gift to provide, that is a clear demonstration of non-cooperation. It is therefore entirely right that such failure, unless justified—and I say this for emphasis—by a reasonable explanation, should be taken into account when assessing the credibility of a person's claim. In that light, I urge noble Lords not to pursue the amendment.

Amendment No. 19 would remove subsection (4) of the clause, such that there would be no requirement for a deciding authority to regard the failure of a person to make an asylum or human rights claim in a safe third country as a matter of importance or damaging to the credibility of their claim in the United Kingdom. It is important to view the provision in subsection (4) within the wider context of a defensible system of protection, not only in the United Kingdom but internationally. There is, as we have discussed in earlier debates, a serious problem at present whereby traffickers and agents promote illegal migration across the globe in a way that puts people's lives at risk. They muddy the waters between movements based on protection needs and movements for other purposes, such as economic betterment.

When a person leaves their country through fear, we consider that, as a general principle, such a person should seek protection in the first safe country where they have the chance to do so. It has been said that nowhere in international law is such a requirement imposed. There may not be such a law, but that does not dilute the argument that a person who is in genuine fear should seek shelter at the earliest opportunity. Accordingly, we think it is right for Clause 7 to require the failure to apply in a safe third country to be taken into account, as that failure may cast some doubt as to a person's motivation for coming to the United Kingdom.

I should like to make two further points. First, the definition of a safe third country has been drawn very narrowly because we have linked that term to the countries listed as safe in Part 2 of Schedule 3 to the Bill. As the Committee will see, those countries are limited to the 26 countries that, as from 1 May this year, will be part of the Dublin II regulation. As noble Lords will be aware, we would, as our first step, seek to remove a person claiming asylum here to one of these 26 countries if the various requirements of the Dublin II regulation were met. It is, however, not always possible to do that under the regulation. Where it is not possible, the UK will consider the claim, but in accordance with this clause deciding authorities will be required to take account of the fact that the person did not apply in one of those safe countries.

The second point is that adverse inferences will be drawn only where a person had a reasonable opportunity to apply in one of the safe third countries through which they passed. In most cases we believe that they would have such an opportunity, but where they could show that they did not, the clause would not apply. I therefore hope that noble Lords will feel that Amendment No. 19, too, is not necessary.

Amendments Nos. 20 and 21 would mean that Clause 7 applied to decisions made by officials but not to decisions made by the immigration appellate bodies. If the primary decision maker had to take different things into account from those considered by the reviewing tribunal, there would be inconsistency and confusion. There would be an incentive for applicants to hold back evidence until the hearing in the hope of avoiding the consequences of their action. That would be an intolerable situation. We cannot have evidence assessed according to different criteria depending on when it is introduced.

I am sure that noble Lords are concerned about the procedures and we will be dealing with this matter. It is a proper concern. Clause 7 is not a threat to those procedures. Although it prescribes that certain behaviour is to be regarded as damaging to the claimant's credibility, it prescribes neither the extent to which credibility is to be regarded as damaged nor the weight to be given to an adverse credibility finding on any point. What it does is provide a framework for decision makers so that all the listed factors are considered in a systematic and transparent way that is consistent across all stages of the process. The person adjudicating the decision will be free to come to a just decision within the context of the circumstances they find.

As the noble Lord, Lord Avebury will recall, having considered the Government's case on these matters, the Joint Committee on Human Rights, at paragraph 32 of its report, stated: We accept that it is legitimate for the Government to adopt this position, and we underline that the deciding authorities should at all times be conscious, when applying clause 6, that a claimant whose credibility is deemed to be damaged could well be telling the truth none the less". That is still open for the court to so find. This does not present an obligation for it to disregard everything that the claimant says. It merely asks the court to bear these factors in mind when exercising its discretion in coming to a properly informed judgment. We suggest that that is right and proper. With that clarification, I invite the noble Lord to withdraw the amendment.

9 p.m.

Earl Russell

I congratulate the Minister. I have made that speech, or variants of it, in this Chamber about 20 times. That is the most imaginative and understanding reply that I have heard to it I agree with what the Minister said about the possible cathartic effect of telling a story. She will appreciate that not all Home Office interviewers have the skill to bring that about. In her professional experience, she must have learnt that. I was glad to hear what she said about training interviewers but it is a long job.

I also hope that she has learnt from her professional experience, as I have learnt from mine, and will accept that getting people to tell a story of that sort is something that can take a very long time. Therefore it should not be held against an applicant that he takes a long time to come out with something that is very traumatic. The Minister's almost final remark that something that is incredible is not necessarily to be the final result of the claim but is only to be taken into account is a very powerful argument for keeping an appeal level of decision, contrary to the original provisions of the Bill. We must remember that 'when we use the word "incredible" we are not saying that something is untrue, merely that it has not been believed. It is a statement about the hearer as much as about the speaker.

On the point about safe third countries, if everybody is to go to a safe third country it will mean that it is impossible to share out the burden if there is an enormous flood of refugees coming from one country. Suppose, for example, that there were a civil war in New Zealand. The whole of the burden would have to fall on Australia. I cannot believe that this is a reasonable way of approaching it. Perhaps the Minister can help the Home Office to have a little more imagination.

Lord Hylton

I am quite certain that none of your Lordships wants to encourage, or in any way approve of, people who deliberately conceal information, mislead, obstruct or delay proceedings in the consideration of their cases. Nevertheless, given the difficulties and obstacles in the way of asylum seekers or refugees reaching this country, it seems that Clause 7 is draconian, to say the least. Has the Home Office fully taken into account the kinds of states of mind and body that people experience on arrival, as was well pointed out by the noble Earl, Lord Russell? Has it taken into account the ignorance of our laws and regulations of the great majority of asylum seekers who very often have to present themselves at the crucial main interview without legal advice and without having had any legal guidance, even on how to fill in their forms? I know that the Minister has helpfully given us some explanations about what constitutes a reasonable explanation and what constitutes telling the truth to a court but if the factors that I have already mentioned could be taken into account more at the early stages a lot of cases would never have to get to court.

Baroness Scotland of Asthal

I wish to deal first with the point made by the noble Earl, Lord Russell. The Committee will know that we and our European partners have been working very hard to try to get a better understanding of the global nature of asylum and migration and to try to get a joint response on how we deal with it. The Committee will remember that a year or so ago Britain put forward a paper, which was favourably considered by the UNHCR, in terms of how this issue could be addressed. We have not resiled from any of those issues.

The noble Earl will know that we have done a great deal of work through DfID and our other agencies better to support in-country measures to reduce the need for people to fly from oppression and harm in countries where that has prevailed in the past.

I say to the noble Lord, Lord Hylton, that there is an understanding within the Home Office of the need to address the ways in which an applicant may tell his or her story. That is why in this legislation there is proper provision for reasonable excuse and explanation. When over a period of time people are sometimes able to give a full account of their story, reasonable excuse and explanation can be properly taken into account by adjudicators and decision makers. Indeed, there is growing expertise and understanding within the body of adjudicators and decision makers in the Home Office and IND who determine these matters. I do not for a moment suggest that it is by any means perfect, but we have a system which we believe is properly balanced to try to ascertain the truth. We shall, of course, continue to do all that we can to hone that system so that it better meets the needs of the people who we are trying to serve.

Lord Avebury

I wish to take up the point that the noble Baroness has just made about reasonable explanation. I remind her that I asked her whether she thought that if someone had the reasons that have been cited for refusing to answer the question—that is, they had suffered rape or torture—it would be equally difficult for them to explain why they had refused to answer the question.

I shall try to help the noble Baroness on this matter as I can see that the Government have every inclination to try to do the best they can for people who have suffered that kind of experience. If an interviewing officer believes that the person's refusal to answer the question may be the result of trauma that they have suffered due to rape or torture, why cannot the guidance to immigration officers provide that they should call in the Medical Foundation? That would seem to be a very reasonable thing to do. That would immediately refer the applicant to someone who could give the sympathetic consideration and confidential approach that such an experience would demand.

I hope that the noble Baroness will take that point on board. I am not suggesting that she should give me an answer immediately. In any case I imagine that there would be guidance on how immigration officers are to interpret the words "reasonable explanation" or "reasonable excuse". I should be quite satisfied for the noble Baroness to return to that point on another occasion.

With regard to the safe third country, I point out that in Schedule 3, paragraph 20(1), the Secretary of State has the power to add to the list of safe third countries. Although the schedule concerns only countries that belong to the European Union to which, as the noble Baroness suggested, a person could be sent back under the Dublin II Convention, at any moment in the future—we are used to this by now—other countries will be added to the list and orders will be presented which will be very difficult for your Lordships to do anything about. We cannot amend orders, and when, in the past, countries have been added to lists, that has normally gone through on the nod. There are plenty of other countries which are not members of the European Union and which we would not be so happy about treating in this way. However, the same could apply even to countries of the European Union. Earlier, we heard a story from my noble friend Lord Russell about Slovenia. It may not be safe to send back everyone who comes through Slovenia and, if a person were of Serbian origin, it might be very dangerous if that were to happen.

The Home Office's attitude to credibility worries me. My noble friend Lord Russell told a number of stories which illustrated the approach of some—not all—immigration officers to questions of credibility. We could add to those. However, it is not only immigration officers; the same can be said of adjudicators.

Recently I heard about a case involving someone who came from the Cite d'Ivoire. She told a story about her family and its involvement in an attempted coup, which resulted in a close member of the family being assassinated when he accompanied the former head of state, General Guëi. The adjudicator said that he did not believe the story and was not even sure that a person such as the uncle, whose name was Fabien Coulibaly, even existed. However, it was subsequently shown to the satisfaction of all concerned that that person had indeed existed, that he had been assassinated at the same time as General Guëi and that the applicant was closely related to him. It was not only the immigration officer who treated the story as being incredible; when the person concerned appealed to the adjudicator, the finding was upheld. I believe that any steps which add to the powers of the immigration officers or the determining authorities to treat statements as basically unacceptable should be viewed with great caution.

However, I was relieved to hear the noble Baroness say that the weight to be attached to this clause could be variable. She said that they were just facts which had to be taken into account and that there was by no means a straitjacket. From that, I take it that if the determining authorities, having considered the matter of credibility, thought that they should not attach any weight to the facts, they would have the discretion to do that. I hope that that is correct and I hope, in particular, that the adjudicators will have the power to disregard the clause entirely, as the noble Baroness suggested—

9.15 p.m.

Baroness Scotland of Asthal

If someone were to disregard the clause, one would expect that he would have to say why. He could not simply disregard it. He would have to give the evidence which he took into account and which caused him to believe that the weight to be given to this inference was not such as to cause him to disbelieve or disregard the applicant and that there were other cogent reasons which caused him to come to that decision. I hope that the noble Lord will not misunderstand if I say that it would be wrong and improper simply to disregard these inferences without justifying the basis upon which that disregard was founded.

Lord Avebury

I am grateful for that clarification. However, if the adjudicator or immigration tribunal in the future decided that the behaviour of the applicant in a particular case was not such as to damage his credibility on something completely different—this is where I consider the whole clause to be illogical—he would be able to disregard the injunction in Clause 1 and say that it did damage the applicant's credibility on those other, completely unrelated matters. At any rate, as the noble Baroness said, he would still have had to comply with the ECHR and the Refugee Convention. That in itself might be enough to cause him to disregard or play down almost to vanishing point the provisions of this clause.

It is fundamentally unsatisfactory for this Parliament to fetter the discretion of judicial authorities. That is what we are doing here, because the deciding authorities are not confined to the immigration officers but to the appellate authorities to which that person ultimately will have to go if he is to make out his case. We are not going to make further progress tonight. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 21 not moved.]

Clause 7 agreed to.

Clause 8 [Failed asylum seekers: withdrawal of support]:

Lord Avebury moved Amendment No. 22: Page 10, line 25, at end insert— (6) Nothing in this section shall be taken as requiring a person to act in contravention of an obligation imposed by virtue of the Children Act 1989 (c. 33), the Children (Scotland) Act 1995 (c. 36), the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) or the Children Act 2004.

The noble Lord said: Clause 8 extends the provisions in Section 54 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 to create a fifth class of person, a failed asylum seeker with family, who will cease to be eligible for any form of support except under Section 20 of the Children Act 1989, which means separating them from their parents.

At present, a person whose asylum claim has been rejected may continue to claim support if he or she has a dependent child as a member of his or her household but this clause inserts a new paragraph 7A in Schedule 3 to the 2002 Act allowing the Secretary of State to certify that, in his opinion, such a person has failed to take steps to leave the UK or to put himself in a position where he would be able to leave the UK voluntarily.

Fourteen days after the person has received a copy of that certificate, he would become ineligible for accommodation and welfare support from the local authority under Sections 21 and 29 of the National Assistance Act 1948; support for the elderly under Section 45 of the Health Services and Public Health Act 1968; support from Social Services under the Children Act 1989 and the Children (Scotland) Act 1995; accommodation under the homeless persons legislation; promotion of wellbeing under Section 2 of the Local Government Act 2000 and support from NASS under the Acts of 2002 and 1999. In short, he will receive no support whatever from public funds.

As the Committee will know, the JCHR examined whether the proposals were compatible with Article 3 of ECHR, which deals with inhuman and degrading treatment; Article 8 on family life; and Article 3.1 of the Convention on the Rights of the Child, which requires us to consider the best interests of the child. The committee heard the Government's argument that the objective was to ensure that families returned in a dignified way; that they should not continue to live at public expense when they were able to return freely; that providing support indefinitely provided an incentive for them to remain; and that there was a power in paragraph 3 of Schedule 3 to the 1999 Act, which applied also to people caught by this clause, for those providing support to continue to do so to the extent that would be necessary to ensure that a breach of the persons convention rights would be avoided.

The JCHR pointed out that in English law the courts had held that establishing a regime in which support could be withdrawn from an asylum seeker leading to his destitution could subject a person to inhuman and degrading treatment, and the Secretary of State had a duty under Section 6 of the Human Rights Act not to withdraw support, if doing so would leave the asylum seeker in a state verging on the degree of severity that would engage Article 3. The committee said that that duty was not a mere formality; it requires the most serious consideration in every individual case.

With regard to respect for private and family life, the JCHR said that in view of the fact that the Government were unable to give any estimate of the numbers, it was impossible to say whether the overall impact of the measure on children and their families was proportionate to the legitimate aim. However, the committee pointed out that the absence of a procedure for deciding whether to exercise the Schedule 3 discretion not to remove support in individual cases was certain to lead to trouble. In relation to Section 55 of the Nationality, Immigration and Asylum Act 2002, the Court of Appeal had stigmatised the failure to provide a fair decision-making process as a violation of the administrative law principle of fairness.

The JCHR went on to say that procedural safeguards, and their absence, were relevant factors in deciding whether interference with a convention right was proportionate. It was not clear that the assurance given to the Home Affairs Committee—that the guidance would ensure that support would not be withdrawn without clear evidence and an attempt to interview the families—sufficiently met this objective. What can be predicted with some confidence is that this clause is likely to trigger a flood of litigation, as Section 55 of the 1999 Act did, in removing support from those who fail to lodge a claim for asylum as soon as possible after entry into the UK. According to Mr Justice Maurice Kay, those were coming in at the rate of 60 a week, and were having a significant impact on the ability of the court to carry out their duties. The Refugee Children's Consortium say that the JCHR could not very well have said that Clause 8 breaches the ECHR outright, because of the safeguards in Schedule 3. But they considered that, in practice, there would inevitably be some breaches, with children at risk or separated from their families while the court case is pending. It also suggested that we are placing an impossible burden on individual social workers, who have to determine whether, and at precisely what point, the Article 3 threshold is reached.

With regard to the Convention on the Rights of the Child, we believe that the clause breaches Article 3, providing that the best interest of the child shall be a primary consideration in all actions concerning children. The Government say is it not in the best interests of a child to prolong her stay indefinitely in a country where she has no prospect of being able to stay permanently. But the assumption that destitution and coercion is the only alternative to indefinite stay ignores the possibility of a better means of achieving voluntary departure than the Government's existing powers of compulsory removal.

Article 9 of the Convention on the Rights of the Child provides that children should not be separated from their parents unless it is necessary for their best interests, and that all procedures for separating children from their parents must be fair. This is not discussed in the JCHR report, but it is part of the UK's international obligations. No doubt the Minister will say that this can be dealt with in the guidance. But here again, it is placing duties on comparatively junior staff and local authorities which they are not equipped to handle. The Government were not able to explain in another place how social workers would be able to operate Clause 8, and in particular how they would reconcile the duty to safeguard and promote the welfare of children in the 1989 Act—and the professional ethics requiring them first to look to the relief of destitution—with the requirements of this clause. I beg to move.

The Lord Bishop of Southwark

I rise to support this amendment in the knowledge that the Government do not wish to make families destitute. The Minister assured us of this at Second Reading. Against this, neither do the Government wish to be taken for a ride with those whose applications for asylum have failed enjoying benefits and having, it might be felt, no incentive to leave. Hence Clause 8.

Clause 8 removes benefit from families whose claims have failed. If there are children, I understand that they remain eligible for support under the Children Act 1989 if, and only if, they are separated from their families. Children, then, might be seen as bargaining counters.

Last year, I visited the newly restored workhouse at Southwell in Nottinghamshire. It was designed to prevent people falling into total destitution, but not to make their lives so comfortable that they had no incentive to seek productive work. Part of the regime of humiliation was for children to be separated from their parents. Even though occupying the same building, they were not allowed to mix or meet. So, pressure of the most painful kind—enforced separation from their children—was a social lever on perceived wastrels. Clause 8 has a hint of the social policy of that workhouse, and runs the risk that, rather than being separated from their children or returning to a desperate situation back home, parents will disappear into destitution, taking their children with them. As the noble Baroness said, the policy is not designed to make families destitute, but that might in fact be the effect.

There are further reasons for arguing for the removal of Clause 8 or, at the very least, for the insertion of the new subsection (6). First, Clause 8 gives government the challenge of operating one set of legislation, which could all too easily cause them to break another. It is not clear that the removal of children from their parents' care, in the case of a failed asylum claim, would be in the best interests of the child. If it is not, the Children Act principle that the welfare of the child is paramount is immediately infringed.

Further, it is not clear how the removal of the child would be effected. Social work guidance indicates that the first choice of care should be within the family. Is that guidance to be breached? Is it a matter of child protection?

Amendment No. 22 proposes a new subsection (6), which would seek to ensure that nothing done under Clause 8 contravenes the rights of the child. It would ensure that the Children Act and comparable legislation across the UK is not contravened. Without it, I wonder how much time will be spent in judicial or quasi-judicial processes to decide which law has the greater clout.

A former Minister has given assurances in another place that at every stage families have open to them the chance of voluntary departure with a paid flight and reintegration assistance. I cannot see how that suddenly becomes attractive unless it is because starvation, homelessness and the loss of one's children seems to be worse. In the event that it does not seem to be worse, we might pause to ask what return is feared if destitution in this foreign land is to be preferred.

I began by suggesting that we are seeking balance in our legislation. Government do not wish to be cruel and do not wish to be taken for a ride. The adoption of the new subsection (6) would provide necessary balance to legislation which at present sails so close to the wind of human rights as to risk capsizing the entire enterprise.

9.30 p.m.

The Earl of Listowel

I speak to the Question that Clause 8 stand part. I am concerned that we may place some families in an impossible situation by introducing the clause. If a family's perception—whatever may be the truth—is that on return to their home country they and their children are at great risk, how can they make the choice between returning to that country and the choice of making them and their children destitute? My concern is that that will be the viewpoint of some of the families we are talking about.

The Government have had a successful approach to asylum claims. They have reduced the number of claims by half in six months. I remember in past legislation how concerned the noble Lord, Lord Rooker, was about the processing of initial claims. They have reduced the processing time for initial claims from, I believe, 18 months to two months. Good progress is being made.

The Government have doubled the return of asylum seekers whose claims have been rejected. So, again there is encouraging progress, although I know there is a long way to go in that direction. As has been said, it is very important to keep the public's confidence in the asylum processing procedure. I understand where the Government are coming from on this clause, but I am concerned that some families affected by this may be pushed into destitution. Given the Government's success in this area, I wonder whether we have really reached the stage where we want to take that risk.

Some years ago, I watched some video footage from a toddler group of a mother and her one year-old child. The child kept on pursuing her rucksack and digging through it. He pulled out a carrier bag, from which he had earlier had some crisps. He kept on going back to this hag, and his mother said, "No, you have eaten your crisps, there are no more crisps left". The mother became increasingly angry and impatient with the child. In fact, the child had been placed with the grandmother, because the mother was not able to understand that her one year-old child could not understand at the same level as a five or six year-old that if one explains to him that there are no crisps left, but he had them earlier, he will just not understand, and he must be treated in a gentle, reassuring way and diverted from such activity. The child was being put in an impossible situation by his mother. He was expected to behave like a six year-old or seven year-old, when he was only one year old.

Recently, we discussed the case of Joseph Scholes who committed suicide nine days after his entry into custody on a two-year sentence. It is alleged that from the age of six he experienced continual sexual abuse from a member of his father's family. His parents divorced in 1997, and there followed an acrimonious custody battle. He was seeing a psychiatrist; he was suffering from depression and suicidal thoughts. He was on medication.

He voluntarily entered a children's home. Six days after his entry to the children's home, he was involved in a string of street robberies. As I understand it, it was reported that he was not accused of being violent, and that he was on the periphery of these activities, but he was found guilty on three charges. Two weeks before he went to trial, he slashed his face 30 times over, and he cut his nose so deeply down to the bone that they had to redecorate the walls in his bedroom because of the flow of blood. The judge took some 19 days to decide on his final judgment for the boy, when he was sentenced to a two-year detention and training order.

I need to know more about this case, but it seems to me that he should have had some psychiatric help; he could have been put into a secure children's home, or a local authority secure unit, but not into a young offenders' institution, as he was. I use his case to illustrate the danger that sometimes the law puts the most vulnerable people in society into an impossible situation that we, from our point of view and our experience, may think it reasonable to have expectations of normal, law abiding behaviour from individuals, but they, because of their experience, are unable to meet our requirements. To punish them in that circumstance is counterproductive.

I quote from a document published by the Medical Foundation for the Care of Victims of Torture. Some asylum seekers have, memories of parents, children or other loved ones being butchered before their eyes, of being brutalised and beaten by men who showed no mercy, of being raped or sexually tortured in other ways so humiliating and degrading that they scarcely dare confide that it occurred". That is the experience of some asylum seekers. I give examples of two cases: This large family comes from Central West Africa. The youngest child is 5 or 6 and the oldest 17. The family arrived in the UK separately. The oldest child had no idea his mother and siblings were here and vice versa … The oldest child was traumatised by the life he spent as a 'child soldier' and the violence he witnessed. Being reunited with mother and siblings has been the best medicine they could possibly receive. Nevertheless, they are still actively receiving treatment from the Medical Foundation. The mother says that she will kill herself rather than return to her own country. We are taking these threats seriously. She and her children have all had episodes of extreme mental disturbance and. while these are not so grave following the family's coming together again, it will take little to push them beyond what they can reasonably endure. The Home Office has refused them and their case is pending appeal. If their appeal were to fail and Clause 8 applied we fear for their physical safety because of the mother's capacity for suicidal thoughts". I am concerned that a family like that might be put in an impossible situation. To our mind, a return to Rwanda may seem extremely safe, but the mother thinks that she would be putting her children in harm's way. She may therefore choose to make herself destitute.

We understand from the discussion in the other place that there are a significant number of families who have been denied claims and have not yet got as far as removal—the sort of families that this clause affects. Can the Minister be more precise about the number of those families, and the number of families that she expects will reach the point where they are made destitute under the clause?

I hope the noble Baroness might consider meeting some representatives from the Medical Foundation for the Care of Victims of Torture to discuss these concerns. I would be very glad if any of your Lordships wished to visit one of Barnardo's projects for families in temporary accommodation and meet some asylum seeking families in that situation, or go with a health visitor to some places in east London to see again the situation of some families there. I cannot promise that I can arrange that, but I would certainly try.

I am concerned that some of these families—we do not know how many—may be being put in an impossible situation where, in their perception—no matter what we know to be the truth—to return is too horrifying a thought to contemplate, and they may choose to make themselves destitute and make their children suffer in this way, because they believe that that is better than the other option. I look forward to the Minister's response.

Baroness Howarth of Breckland

My Lords, I had not anticipated speaking in this debate this evening, as asylum and immigration are not my expertise. But I do know a little about the care and development of children, and want to speak on their behalf.

I do not condone illegal immigration, and appreciate the difficult decisions that have to be made in this area by the Government. But we should not be making families with children destitute without even the backup of the workhouse referred to by the right reverend Prelate, whatever the provocation.

The protection of our young is a test of our civilised society. The threat of removal of children into care is no answer in these circumstances. No child should be put through the trauma of removal from caring—even if misguided—parents. I declare an interest as a social worker who has, in the past, had the job of removing children from families and placing them in care. That situation is especially so, if these children have already been uprooted, having experienced situations of possible fear and persecution, and whose only stability is their family.

Who will do this? If they have caring parents who believe that they are protecting their children by their actions, then all the children's legislation would prevent their removal, as in the amendment. It is against the ethical code of we social workers to remove children who are not in need of care or protection, for any other reason than an economic one. They would then, surely, invoke the power of the 1963 Act which under Section 1 empowers local authorities to make payments to keep families together. This would simply remove the financial burden from central Government departments to local government.

I find it hard to understand how a caring government, committed to children, to whom "every child matters" can contemplate this course of action. I beg for the clause's withdrawal, and should the matter be pressed to a vote, I hope that all Peers of conscience would vote against it.

9.45 p.m.

Earl Russell

I have been wondering, as the debate has gone on, had I had a family and young children, what I would have done if I had been placed in the position envisaged in Clause 8. I have tried to consider this on a twofold basis—on the basis of having a genuine, well founded fear of persecution and of not having one. Whatever side of the basic argument we are on, we have to admit that both sides exist.

Had I a well founded fear of persecution, under no circumstances whatever would I have considered going back to the country I had left with my children. This is not just a matter of fear—it is a matter of pride. I would not have been willing to crawl back and submit to the dictator from whom I had fled, least of all in response to what I would have regarded as a most outrageous exercise of the power of the purse by the Government of this country. In fact, that attempt of the use of the withdrawal of support as a weapon of bullying would have made me more determined not to return than I was before.

This would have left me with a limited string of options. There is, of course, the option, occasionally taken by fathers affected by the CSA, of killing the whole family, which I hope I would not have taken. There is the option of trying to escape as a family together, but travelling with young children, even across the Irish Sea, tends to attract attention. I think I probably would have adopted what I think of as the Moses in the bulrushes route. I would have left the children behind in the hope that they would be cared for at least enough to be kept fed and alive in this country while I and my wife would have been left the choice either of trying to escape across the Irish Sea and hoping that we could do better in another place, or that of suicide. Which of these we would have chosen I cannot say until I know the state of health and the circumstances in which the choice would have to be made.

Had I not had a well founded fear of persecution, the first thought to which I would have turned would, of course, be crime. I would very much hope that by that time the Government had introduced identity cards because stealing them would make it much easier to get a new identity fast enough for the family to survive. I would then have hoped that by my skill in crime, if I had it, I could keep the family alive in a surreptitious way. If I did not have that skill, I do not know what the alternative would have been. There is the alternative of suicide.

We heard earlier, during the debate on trafficking, that some parents, especially from poor countries, who believe that sending their children here, unaccompanied, under a trafficking scheme, is actually in their best interests. I could have been forced, by weight of circumstance—by government policy—to join the list of those people. But still, I think, in any of these circumstances, I cannot imagine that of all the decisions I might have taken—and I can think of none that would not have been miserable—I would possibly have considered return as one of the options in response to this particular exercise of power. The need to resist it would have been overwhelming.

Baroness Anelay of St Johns

At Second Reading on 15 March, at col. 57 of the Official Report, I made clear our position on the withdrawal of benefits. We recognise that the withdrawal of benefits has been, and continues to be, an extremely sensitive and controversial issue. Those on all sides in the debate have as their greatest care what happens to the children in these cases.

We had a significant debate on the matter during the passage of the previous asylum Bill. It was the first debate of my Home Office brief some two years ago. Press reports before the publication of this Bill represented the Government as using the withdrawal of support as an incentive to force asylum seekers with children to leave the country.

When the Bill was printed, we accepted that it did not have such provisions within it. As the right reverend Prelate the Bishop of Southwark has already remarked, the then Minister in another place, Beverley Hughes, gave a series of undertakings. The most recent was in a Written Answer on 17 March (at col. 338W of the Official Report) and it was the clearest and most succinct of all. Given our debate tonight, it is appropriate to invite the Minister to give as unequivocal a commitment on that same matter.

My colleagues in another place accepted the undertakings of the then Minister, Beverley Hughes. If the Minister were able to give an honourable undertaking tonight—because all her undertakings are honourable—I would certainly accept it.

I listened carefully to the noble Earl, Lord Listowel, who has so much experience in these matters. He was right to refer to particular cases and to the trauma that families go through. When I chaired a family court as a magistrate, I had to hear cases brought by local authorities on behalf of children where a care order could have been issued. I found those to be the most difficult of all cases. I also chaired criminal courts, but those were the most complex issues to hear and the most difficult to decide. Although I sat as a chair of a family court for some 11 years, I can count on the fingers of one hand the number of care orders that were ultimately made. I can remember the circumstances of each and every one. Therefore, the Minister, who has had a lifetime of work in the family courts, will have considered each and every part of the clause before she presented the Government's case to this House.

It is important that we do not accept proposals that would act as an incentive to force children into care. On the basis that Clause 8 does not perform that function, I do not oppose it and I look forward to hearing the undertakings of the Minister.

Baroness Scotland of Asthal

I immediately repeat the undertakings of my right honourable and honourable friends in another place. I repeat the undertakings of my colleague, Beverley Hughes, who was then the immigration and asylum Minister. The noble Baroness has referred to them as set out on 17 March and we do not retreat from them in any degree. The Minister stated: There is nothing in the Bill which changes in any way the grounds on which children may be taken into care. The Bill simply provides that families, illegally resident in the UK once their claims have failed, would no longer be entitled to support at the expense of the taxpayer if they refuse to co-operate with efforts to return them home. If, by putting themselves in this position, parents put their children at risk, it would be for the local authority to decide how the interests of their children should be protected under existing child protection legislation. We do not believe that many, if any, parents would put their children in this position".—[Official Report, Commons, 17/3/04; col. 338W.] I am more than happy to repeat that statement.

There has been much debate involving many noble Lords who have a keen concern about the welfare of families and the welfare of children. Therefore, I was not surprised to hear the contributions from the right reverend Prelate the Bishop of Southwark, the noble Earl, Lord Listowel, who has spoken on so many occasions on such issues, from the noble Baroness, Lady Howarth, with her long experience in social work, and from the noble Earl, Lord Russell. In order to make our position absolutely clear, it may be appropriate for me—not withstanding the late hour—to give a full answer in relation to this part of the debate. A number of concerns have been raised.

I reassure the right reverend Prelate the Bishop of Southwark that we do not think it is ever appropriate to use children as bargaining counters, and we do not so do through this legislation. Neither do we seek to separate children unnecessarily from their parents—that is not the intent behind the provisions. Nor do we hark back to the days of the workhouse, where separation of parent and child was done in some means to punish, or to enable the parents to take a better advantage or understanding of their responsibilities. Nothing could be further from the point.

I also thank the noble Earl, Lord Listowel, for outlining the issues where the Government have done well, and would reassure him that we do not wish people to be on the edge, or placed in such a position that they take decisions which are disadvantageous and injurious to their own health and/or injurious to their children. I say the same in response to the noble Earl, Lord Russell, and his description of those who may be thus obliged.

Clause 8 specifies a fifth class of person, a failed asylum-seeker with family, who will cease to be eligible for support under Schedule 3, paragraph I of the Nationality, Immigration and Asylum Act 2002, which relates to the withholding and withdrawing of support. The clause adds a new paragraph—paragraph 7A—to the schedule. Failed asylum seekers with dependent children receive asylum support, living expenses and accommodation until they leave the United Kingdom or fail to comply with a removal direction, if sooner. Under Clause 8, if the Secretary of State certifies that, in his opinion, such people have failed without reasonable excuse—I emphasise "without reasonable excuse"—to take reasonable steps to leave the United Kingdom voluntarily or place themselves in the position in which they are able to do so, by, for example, co-operating with steps taken to obtain a travel document on their behalf, asylum support for the family will cease. The family is also rendered ineligible for various other types of support or assistance, although the children in the family may still be supported by, for example, a local authority.

The intent behind this legislation is to help those who have failed in their application to leave this country in a humane, decent and well managed way. Support will cease 14 days after the failed asylum seeker receives the copy of the Secretary of State's certificate.

Earl Russell

The Minister speaks of the Government's intention. That she can do with honour. Can she possibly answer for the effect of the legislation?

Baroness Scotland of Asthal

All I can do is create a framework where the effect of what we anticipate is managed in a way that we hope will not inure to the disadvantage of the families—and they will include children. Of course, we cannot legislate for each and every occurrence. What we can ensure is that the framework that we put in place is robust, fair, proportionate and enables people to receive the succour that they justly and rightly deserve when their application has failed, and they wish, with propriety, to leave the country.

Baroness Howarth of Breckland

Listening to the Minister's reasoning, which she gives with her usual clarity, the question that is still very firmly in my mind is what happens when there is a difference of opinion about what might be considered reasonable in terms of assessment. I recognise the complexity of these situations, but there will be situations in which the social worker and the immigration officer come to a different conclusion about what is reasonable. I want a good reassurance that the framework of assessment—and I intervened because the Minister was talking about frameworks of assessment—in any regulation is absolutely clear about how this kind of dispute will be resolved.

10 p.m.

Baroness Scotland of Asthal

I hope that I made it clear, in repeating what Beverley Hughes, the then Minister of State in the Home Office said on 17 March, and the comments that I have made, that we do not propose that those who co-operate appropriately with the provisions made for their return should in any way be disadvantaged.

I hope that in the full answer that I am in the middle of giving, noble Lords will receive the comfort and reassurance that they seek. It is very important to understand how the system currently works, how we propose that the new system will work and at which point these decisions will fall to be made. Noble Lords will have noted that when I repeated what was said by Ms Hughes in the other place, I said that it would be for the local authority to decide how the interests of their children should be protected under existing child protection legislation.

I was seeking to describe the process by which support would cease 14 days after the failed asylum seeker receives a copy of the Secretary of State's certificate. When the certificate is sent by first-class post, the person is treated as receiving it on the second day after the day on which it is posted. It will also be possible for the Secretary of State to serve the certificate personally, when appropriate. When a decision is made to withdraw support under Clause 8, we will also, as a matter of administrative practice, send a copy of the certificate to the failed asylum seekers' representative if one is acting on their behalf. The family will also have the right to appeal against the Secretary of State's decision to certify to the asylum support adjudicator following the amendment that we brought forward in another place.

Amendment No. 22 would mean that nothing in Clause 8 should be taken as requiring a person to act in contravention of an obligation imposed by virtue of the Children Act, the Children (Scotland) Act 1995, the Children (Northern Ireland) Order 1995 or the Children Act 2004. The latter reference refers to the Children Bill, which received its Second Reading here on 30 March. Clause 8 inserts a new class of person into Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Paragraph 1 of that schedule makes it clear that local authorities are prevented from offering support under certain sections of the legislation contained in the amendment in respect of adults. The amendment would run counter to our intentions, and I cannot accept it.

We have made clear repeatedly that we need to tackle what we regard as the perverse incentive whereby people are able to remain in the UK, supported indefinitely at the taxpayer's expense, even in cases where they are not co-operating with efforts to remove them. As the amendment would allow the local authority to provide support to the whole family, we can see that this incentive would not be tackled. From the perspective of the family, it is irrelevant whether central or local government provides the support. If they are able to receive support, then they have no reason to co-operate if they are determined to remain here.

It is important that we continue to emphasise that the families affected by Clause 8 are those whose asylum claim has been refused and—and it is an important "and"—whose appeal has been turned down, assuming they have used their opportunity to appeal.

We need to be clear that there is no choice between staying here or returning home. Quite simply, the family is here illegally and has no right to stay here. Can we expect the public to accept a situation in which their money is used to support indefinitely those who do not qualify under our rules, regardless of whether they co-operate or not? I stress again that our intention is not to make families destitute. Our whole approach to this issue has been one of encouraging families to take up opportunities of voluntary return, and we explain clearly the consequences of a failure to depart. We have also provided for a right of appeal against the decision to withdraw support to the asylum support adjudicator. That provides a further safeguard.

There has to be an end point, unless the Committee is of the view that there will never be an efficacious method by which we can determine whether someone has a bona tide claim. That would be the consequence. We would never be able to determine someone's claim—provided they had been able to get here—and say, "You do not fall within the rules that we have created and therefore regrettably you have no right to be here". Unless we say that we shall disable ourselves from making that distinction, disable ourselves from making those decisions and be incapable in any circumstances of moving failed asylum seekers, we have to find a method of bringing matters decently and appropriately to a close.

Two arguments are used. First, why do we not simply enforce removal? Where we can, we will. But, if the family does not have appropriate documentation, we cannot put them on a plane. That is simply not an option—hence the incentive for families not to co-operate. Secondly, why can we not simply engage with the family and encourage departure without the ultimate sanction of withdrawing support? Such an engagement with the family is precisely what we want, as I have explained. It is part of the process we have outlined and it remains the case that, if the family co-operates, support will not be withdrawn. But we are not prepared to let support continue indefinitely where a family is failing, without reasonable excuse, to take reasonable steps to leave the UK or to place itself in a position to do so.

In a number of cases, families do not have the appropriate documentation for return and the country will not accept them, but they do everything that they can to co-operate with us. Therefore they remain in this country for some time, and quite properly they continue to receive our support because they are co-operating. Such families would continue to be covered. If people say, "We will not co-operate with you; we do not have documentation; we are not going to do anything to help you to get the documentation and we are going to stay here none the less", it must be appropriate for us to do something in response.

I draw the attention of the Committee to the provision in paragraph (3) of Schedule 3 which ensures that the prohibitions on offering support do not prevent the exercise of a power to the extent that it is necessary to avoid a breach of a person's rights under ECHR.

I understand the concerns that have prompted the amendment. I say that openly to the noble Lord, Lord Avebury. But, for the reasons I have given, we cannot allow a provision that fails to tackle the very incentive that the clause is designed to address. In summary, this clause will ensure that we have a robust system for making families absolutely clear about what is happening and about the consequences of failing to leave. We do not want families to be separated. We do not want people to be destitute. We want a managed system where people leave voluntarily after a fair hearing of their case and where people are clear that they cannot expect the state to support them indefinitely, regardless of the merits of their case.

I hope that that explanation assists, but I do pray in aid the JCHR report to which the noble Lord, Lord Avebury, made reference. The committee accepted, that the Bill would not make it impossible to give appropriate protection to Convention rights". It said, also at paragraph 44, and we accept that it is not in a child's best interests to remain for a long period in a country where he or she has no prospect of being allowed to remain permanently". It went on at paragraph 45 to say: While clause 7 in itself is compatible with rights under the ECHR and the CRC, we fear that violations could all too easily follow in practice. We draw this to the attention of each House". We have very much taken that provision to heart in the way in which we sought to amend these issues.

The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Southwark both raised issues about how we are making it unattractive for families to return voluntarily. It becomes unattractive because families have no right to remain here and need to return home. Emphasis throughout has been on encouraging those families to return voluntarily. As I said earlier, the truth is that we and they have to accept that their asylum claim has been rejected and that they have not got a choice as to whether to remain here because the decision has been made.

The noble Earl, Lord Listowel, raised the issue of torture victims. Of course, those who are victims of torture in the way described by the noble Earl will have been granted refugee status. As I hope I have made absolutely clear, Clause 8 is aimed at failed asylum seekers.

The noble Earl asked about numbers of families. We have no specific figure in relation to numbers where support was withdrawn. We anticipate that those numbers will be small. The whole point is to encourage those people to go in a way that is decent and appropriate so that we never have to use that as a means of drawing matters to a close.

I hope that with that explanation, if noble Lords will not feel content, they will at least have a better or a modicum of understanding as to why the Government have come to the decision that we have now reached.

The Earl of Listowel

My Lords, I thank the noble Baroness for her full and eloquent response to the concerns expressed this evening in the Chamber. I see the merits of the procedure that she described whereby there will be an opportunity to engage with these hard to reach families through the interview which will take place in the course of this process and through the letters that come to them. I see that as an advantage to this exercise.

For me the problem is that we still do not know—as the noble Baroness has indicated—how that will work in practice. I am concerned that we might repeat what seems to have happened elsewhere—I mentioned some cases earlier. Your Lordships might like to consider the case of Patricia Amos who was imprisoned following her daughters, Emma and Jackie, missing out on school. She was the first parent to be imprisoned on that basis and recently she returned to prison because one of her children has again not attended school regularly. The sad part of this story is that this mother is a heroin addict and appears—from reports—to have been too chaotic to have been able to organise her family to help them get those children into school. Reflecting on that, there is the fact that in the past 10 years the number of women in prison has increased by 194 per cent. Is that figure about right?

Although one can see the difficulties that the Government are seeking to address by this, the danger is that it will lead into uncharted waters where one ends up imprisoning a lot of people whom one would not really want to imprison or, in this case, driving a lot of families into destitution, as one really would not want to do. I understand the Government's understandable frustration at not being able to get these families to co-operate. However, the point I should like to stress to the Minister is that, by seeking to close these loopholes, one may inadvertently drive a significant number of those families underground where they will be very vulnerable. I just ask her to bear in mind the precept that doctors use: first do no harm. That is a very important concept to bear in mind when considering these very vulnerable families. However, I thank the Minister for her full reply to the debate. I shall look very carefully at what she said.

10.15 p.m.

The Countess of Mar

I apologise for keeping the Committee at this late hour; as the noble Lord the Chief Whip will know, I am not very keen on staying up late. Very briefly, however, I should like to ask the Minister to confirm that when families agree to be voluntarily repatriated, if they have no money they will be assisted by the Home Office to go home.

Baroness Scotland of Asthal

They are. We take steps to ensure that those issues are appropriately addressed. I re-emphasise my earlier comments that it is co-operation that we seek. For those who do co-operate, we are only too happy to assist appropriately.

Lord Avebury

I think that all noble Lords who have spoken have no reservations at all about the Government's intentions in this clause. As the right reverend Prelate the Bishop of Southwark and the noble Earl, Lord Listowel, both emphasised, we are anxious about how it will work in practice.

The noble Earl has just said that he is to some extent reassured by what the noble Baroness said about the process and by the repetition of Beverley Hughes's statement in another place. I must concede that I am also to some extent heartened by the statement that the then Minister made just before her departure. If I have it right, she said that it will be for the local authority to decide how children should be protected under existing child protection legislation. I hope I may take it from that that she means all the provisions of the child protection legislation. I was invited to ask the noble Baroness to elucidate by giving us the section numbers of those provisions of the Children Act that apply, but I no longer need to do so. I am sure that it goes without saying that, for example, Section 17 applies, which allows local authorities to support by giving cash to those they think are in need of it.

However, that raises the question which I think was raised by the noble Baroness, Lady Howarth, that one is simply transferring the responsibility for looking after these families from the central government to the local authority. Every time they see that the best interests of the children require them to make provision for financial assistance or even accommodation, then they will have to step in and the effects that the noble Baroness hopes will be achieved by this legislation will not be accomplished at all. I really wish that the noble Baroness and the Government had turned their attention to other means of solving this problem, which exists. There could be more provision to help families by counselling and so on to show that it is in their best interests to comply with the process.

I am not sure that the noble Baroness quite completed her explanation of the sequence of events which follows the notification letter. She had got as far as the point that the person was deemed to have received it and they have the right of appeal against it, but she did not continue to say how the social workers would proceed from that point onwards to ensure that the best interests of the child continued to be observed. It seems to me that local authorities have an impossible duty under this clause with those who still refuse to comply in the processes. Although the Minister said that it would be a very small number, I question whether that is the case. When one looks at what has happened under Section 55, 40 cases a week have come to the High Court and they are anticipating that there would be an equivalent number under this legislation.

I have no idea why the Minister thinks that there are grounds for giving the assurance that the number of cases that will come to the courts under this legislation will be very small indeed. But at this late hour we cannot pursue all these complicated matters further. We will have to consider whether it is right, in the light of the assurances that the Minister has given, for us to return to the matter in a few weeks' time, after Easter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Lord Avebury moved Amendment No. 23: After Clause 8, insert the following new clause—


For section 94(3) of the Immigration and Asylum Act 1999 (c. 33) (interpretation of Part VI) substitute— (3) For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—

  1. (a) on the day on which the Secretary of State notifies the claimant of the associated termination of his or her support, or
  2. (b) if the claimant has appealed against the Secretary of State's decision, and the appeal has been disposed of, on the day on which the Secretary of State notifies the appellant of the associated termination of his or her support, as may be prescribed.""

The noble Lord said: This amendment is similar to one that was tabled in another place by my honourable friend Mark Oaten. It would ensure that asylum seekers whose NASS support is to be terminated following the final decision on their asylum claims get the full grace period before the termination kicks in, as the Government promised in 1999 and 2002.

Section 94(3) of the Immigration and Asylum Act, as at present drafted, refers to the grace period as being specified in the regulations—the Asylum Support Regulations 2000. The aim was to give successful asylum seekers time to find alternative accommodation and to access normal welfare benefits or to get employment, while those who had been rejected would be able to organise their affairs prior to voluntary departure. The grace period was originally 14 days regardless of the outcome of the asylum claim, but that was amended to 28 days for the successful and 21 days for the unsuccessful in the 2002 regulations.

Unfortunately, because of the failure of NASS and the asylum casework division of the IND to synchronise notification of the decision on the asylum claim with notice of the termination of the support, individuals and families were invariably getting less than the 28 or 21 days' notice to which they are entitled. In many cases they are only getting seven days' notice to quit NASS accommodation, which is the minimum specified elsewhere in the regulations. In a week it is virtually impossible to find suitable alternative accommodation and that creates enormous stress and anxiety for the asylum seeker and impossible problems for the already overstretched local housing authorities and voluntary agencies.

This amendment would ensure that all NASS supported asylum seekers receive the 28 or 21 days' notice to which the regulations say that they are entitled. That was introduced as a result of the Government's own internal review of dispersal and related matters in 2001, which called for better integration of NASS processes with those of the integrated casework directorate to facilitate the removal process in the cases of those whose claims were rejected. That has not happened and is another criticism to be laid at the door of the Home Office, although not necessarily at that of the Minister who has taken the rap. That is my only reference to the late Minister who has recently departed.

When Parliament changed the regulations in 2002, we did so on the understanding that asylum seekers would get the full 21 or 28 days' notice of termination of support and to that extent public faith was pledged. I believe that that was also the intention of the Government in April 2002. In Standing Committee the Minister said that she hoped to give reassurance on achieving the objective. She said that the difficulty was that the clock started ticking when the decision letter arrived and the notification of termination of support followed. Some part of the notice period would have been eroded by the time the asylum seeker received the NASS 35 letter. I wonder whether these people have ever heard of e-mail? I know that the Home Office is the last bastion of resistance to new technology and that when it does adopt it, it generally makes expensive mistakes, but this is not something that requires very advanced techniques. I beg to move.

Lord Best

The noble Lord, Lord Avebury, made many of the comments that I planned to make in supporting the new clause.

The point about 28 days' notice sounds very tedious and administrative. When does it start? When does it finish? However, this is a very important point. About 18 months ago when this matter was debated in this House, the noble Lord, Lord Filkin, said: 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".—[Official Report,24/10/02; col. 1454.] The noble Lord, Lord Judd, said with regard to celebrating the gaining of the status of acceptance, in those initial days and weeks the foundations can be laid for a successful life in the future".—[Official Report, 15/7/02 col. 973.] The problem has been that with the good news that asylum seekers may remain here comes the notice of eviction from the accommodation provided by NASS to which they have been dispersed away from the pressurised south-east and London, often with only a few days to get out.

When the Nationality, Immigration and Asylum Act 2002 was before your Lordships, I proposed an amendment to extend the period of grace for those accepted as refugees and given leave to remain. I suggested an increase from 28 days' notice to 60 days. I pointed out the improbability of all the necessary procedures being sorted out and the households being able to secure alternative accommodation elsewhere, plus organising housing benefit or a job paying sufficient to afford the rent, all within four weeks. I noted that because of bureaucratic delays of different kinds, the 28-days notice was being seriously eroded. That evidence was very sympathetically received by the noble Lord, Lord Filkin, then the Home Office Minister in charge. I subsequently met with senior civil servants and the Minister to discuss progress in resolving those problems.

Rather more than a year later I am delighted to report back to your Lordships that in at least one highly significant respect the position appears likely to be much improved. This relates to one of the main problems of the 28-day notice period; namely, the lengthy delays experienced by the households concerned in receiving a national insurance number—a NINO. When this Bill was in Committee in the other place the Minister there explained that because the main hold-up in accessing mainstream benefit before NASS support runs out arises from the issuing of the national insurance number by the Department for Work and Pensions, a pilot scheme has been run to give successful asylum applicants their national insurance number with the letter notifying them that they may stay in this country. Instead of the NINO coming out days, weeks or even months later—and on it depends access to work and benefits—the pilot for all applicants who were interviewed in Liverpool brought the issuing of the national insurance number up to the front of the process.

I was delighted to learn that that pilot has proved a considerable success and the plan is now to roll out the process to cover every case. That is an important step forward and I congratulate the Home Office, the Department for Work and Pensions and the Inland Revenue on reaching agreement on this joined-up approach. However, this is not the end of the story. There are other aspects of the problem which mean that new refugee households will almost never have 28 days in which to get everything else sorted out.

The review of the operations of NASS early last year highlighted this issue. I shall not quote from that report. However, I rounded up current information from colleagues handling these matters on a day-to-day basis in the regions concerned, both directly and with the help of Shelter and citizens advice. In the words of one settlement officer in the north-west, the 28 day grace period exists only on paper. Yet it is a procedural issue which could be addressed for little if any extra expense. If only the grace period was correctly dealt with, it could serve to ensure the smooth and managed transition of new refugees from NASS support to the mainstream housing and employment markets which, after all, is its purpose". I have a cluster of other pieces of evidence from those who are at the coalface dealing with these issues on a day-to-day basis and they repeat the same problems over and over again. A local authority settlement officer in Newcastle, for example, explains a typical case where Mrs A receives her positive decision on 1 January with a letter sent by the Immigration and Nationality Directorate. However, the accommodation provider receives notification on 18 January. Fifteen days of the prescribed period have been eaten up, and it cannot be assumed that members of the household, to whom there is simply a short reference in the IND's grant of status letter in English, will have taken any action to arrange their move to new premises. As an officer in Manchester explained to me: Although many local authorities have refugee resettlement workers available to assist new refugees move on from NASS support, they often have little more than a week in which to accomplish everything that needs to be done". The good news about national insurance numbers—assuming that the proposed roll-out from the pilot is now proceeding—does not address the need for co-ordination between the IND and NASS. It also does not address the issues of letters being lost in the post and of going to the solicitors who used to act for the family. Meanwhile, the clock is ticking away and the members of the household do not know that their time is running out and that they will soon have to leave their accommodation.

The result is that last year in Yorkshire alone, for example, more than 1,000 families had to be accepted as homeless after their over-hasty eviction from NASS accommodation. Those who have no priority for council housing—mostly single people who are evicted and have nowhere to go—will often leave for the floors of friends in London and the south-east, nullifying the whole purpose of the dispersal of such people to areas with less housing pressure.

The amendment would mean that 28 days would be 28 days, whatever happened to the bureaucratic systems in the mean time. I hope that, at this late hour, the Committee will have the tolerance to consider it, and I look forward to hearing the response of the Minister.

10.30 p.m.

Baroness Scotland of Asthal

I thank the noble Lord, Lord Best, for his congratulations. I hope that he will celebrate with me the news that I am to add to the pleasure that he has undoubtedly given to the Committee by saying that, as of today, 5 April, the process described by the noble Lord as having been piloted in Liverpool will run for all asylum claims, including those considered in Croydon. The noble Lord was right to say that that was a major obstacle. With the good work of the Department for Work and Pensions, together with my right honourable friends with responsibility for the Inland Revenue and at the Home Office, we have been able, if I may express it colloquially. to crack that one to some satisfaction. Notwithstanding the late hour, perhaps I may say a little more about where we are now with regard to the system. We do not consider the amendment to be necessary and, if I may, I shall explain why. As many noble Lords will know, at the end of the asylum process, asylum seekers receive two separate letters: one telling them whether their claim or appeal has succeeded or failed; and, for successful refugees and failed asylum seekers without minor dependants, one from NASS saying that their support will be terminated on a certain date.

As noble Lords have already said, the termination of support is subject to a grace period of 28 days for successful refugees and 21 days for single failed asylum seekers. Failed asylum seeker families remain on NASS support until they leave the country, although their support can be terminated if they fail to comply with removal directions, as we have just discussed. The grace period is calculated from the date of the asylum decision or disposal of the appeal.

There is sometimes a delay between the sending out of the asylum decision or appeal notification and the NASS termination letter. Therefore, I understand that this new clause proposes that the 28-day or 21-day grace period be calculated from the date of the NASS termination letter rather than the asylum letter.

Advocates of this new clause, including citizens advice bureaux, argue that that would make it easier for successful refugees to transfer to the mainstream benefits system. I know that they also argue, as has been argued in Committee today, that it would make for a smoother process for single failed asylum seekers.

We recognise that successful refugees face considerable challenges when leaving NASS support and entering the mainstream benefits system. However, we do not consider it necessary to change the legislation so that the grace period commences on receipt of notice of termination of NASS support.

There is nothing that NASS does in ending support that makes a successful asylum seeker (including those given other types of leave to remain) eligible for mainstream benefits. That eligibility is conferred only through the asylum determination letter. The fact is that a successful asylum seeker is able to apply for benefits from the point at which the status letter is received.

Instead of amending the legislation, we believe we should concentrate our efforts on improving existing processes and pursuing work to make more effective use of the existing statutory period.

We have therefore undertaken considerable work to improve our processes and reduce the delay between receipt of a final decision on an asylum claim and receipt of the letter terminating NASS support. It was for that reason that the main areas where improvements are being made are links with the Department for Work and Pensions and those between NASS and other parts of IND. So, the noble Lord. Lord Best, was right to emphasise the importance of the work we have done at the Department for Work and Pensions because the main hold-up in assessing mainstream benefits befbre NASS support runs out is the issue of the national insurance number by DWP. Within the past year we have managed to change that system so that you immediately get a national insurance number the moment you get the decision; from that moment people will therefore be able to make appropriate application for the widest range of benefits.

The noble Lords, Lord Best and Lord Avebury, were right to say that links between NASS and the other areas of IND are essential because before NASS can give notice of termination of support, it needs to be aware that a decision has been made on the asylum claim. Computer links between the Asylum Caseworking Directorate and NASS are being improved to enable that process. I reassure the noble Lord, Lord Avebury, that not only does the Home Office graphically understand and use e-mails as has been demonstrated in the past couple of weeks; we also understand and use computer technology. NASS now aims to give at least 21 days' notice before support ends to 90 per cent or more of asylum seekers. We shall shortly introduce a system enhancement so that we shall be able to monitor the actual notice period for all cases. As for failed asylum seekers, when we terminate support for them we put them in touch with the International Organisation for Migration and the Immigration Service, who are able to arrange voluntary return at no financial cost to the individual.

Single failed asylum seekers who cannot return home may be eligible for support under Section 4 of the Immigration and Asylum Act 1999. Policy on Section 4 is being clarified and tightened up. A new policy bulletin was published on 25 March this year. We have also decided that when terminating support to failed asylum seekers we shall in future draw the existence of Section 4 support to their attention. That procedure will be put in place shortly.

I hope that noble Lords will agree that it was much more important for us to concentrate on efforts to ensure that the practical system worked well and that the inter-relationship between DWP, Inland Revenue and ourselves through IND is as smooth as we can make it so that the provisions work as opposed to the contrary. In this area of immigration and asylum, as in many others, we believe that the Government have made successful moves in the right direction to overcome what have been hitherto almost insurmountable odds and we are winning.

Lord Avebury

I am grateful to the noble Lord, Lord Best, for all the work he has done on this subject in the past, and I think that the excellent announcement we have just heard from the Minister may be attributable partly to the pressure he has brought to bear over the past 18 months. However, one must say that the solution, at first sight, appears to be so simple that one really wonders why the Home Office and those responsible for national insurance did not adopt it much earlier. Obviously, it did not need legislation for them to make the issue of a national insurance number coincide with a decision letter. One also wonders why it was necessary to have a pilot for something that is so obviously for the benefit of all concerned, and why it needed to be tested in one area of the country.

But perhaps that is being a little ungracious in welcoming the news that the noble Baroness, Lady Scotland, has given us this evening. We should be rejoicing that, from now onwards at any rate, people will able to claim ordinary benefits immediately they get the decision letter. That is a great advance on what has happened in the past. I am also pleased to hear what the noble Baroness says about the computer links between the IND and NASS, although I understand that those are not yet fully in operation but are in the process of being implemented. Knowing how long these things take, I do not expect that it will happen tomorrow. I hope that we shall perhaps have a progress report at some date in the near future, because now that the noble Baroness, Lady Scotland, has told us about it, we will obviously be keeping an eye on it to ensure that it happens as soon as possible.

I am also pleased to hear that the noble Baroness, Lady Scotland, does not think that any legislation will be necessary to give effect to the improvements we are talking about. For that reason, I am very happy to withdraw the amendment and to conclude our proceedings this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

I beg to move that the House do now resume.

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

House resumed.

House adjourned at seventeen minutes before eleven o'clock.