§ Consideration of amendments on Report resumed on Clause 1.
Lord McIntosh of Haringey moved Amendment No. 21:
Page 2, line 32, after ("appellant") insert ("or the Secretary of State").
§ The noble Lord said: My Lords, this amendment was tabled at Committee stage, but we feel that it is so important and that the answers given by the Government were so unsatisfactory that we have to return to the matter again.
§ The amendment would ensure a level playing-field to the extent that the prohibition on the applicant under Clause 1 going to the tribunal and the special adjudicator should apply equally to the Secretary of State. It seems to us utterly unjust that the applicant should be denied access to the special adjudicator, whereas the Secretary of State still has that access. Not only is it unjust; it goes to defeat the objects of the Government in seeking to speed up the consideration of asylum applications. An application to the special adjudicator by the Secretary of State delays matters just as greatly as an application by the appellant.
§ This is not the ideal amendment. Ideally, we would wish access to the tribunal to be available to both the appellant and the Secretary of State. Failing access by the appellant, we do not see why the Home Office should retain appeal rights that it is removing from appellants.
In Committee, the Government said on a number of occasions that the object of the exercise was to reduce delay. They said on 30th April that denial of access to the tribunal was,
an important part of the benefit which the appeal system derives from the accelerated procedure. It reduces the number of applications for leave to appeal which the tribunal is required to consider".—[Official Report, 30/4/96; col. 1506.]
At column 1507, the Minister said:
I do not accept the argument that access to the tribunal should always be a possibility as a long-stop safeguard";
and in the same column:
There seems little point in having an accelerated appeal procedure if we are not even prepared to reduce the normal three-tier system of consideration by the Secretary of State, the adjudicator and the tribunal to a two-tier one".—[Official Report, 30/4/96; col. 1507.]
§ We agree entirely. That is what this amendment would do. It provides that neither the appellant nor the Secretary of State should have access to the tribunal. We seriously ask the Government: what is gained by allowing the Secretary of State to apply for leave to the tribunal when the decision goes against him?
§ The argument for this amendment seems so apparent and is supported so strongly by the arguments put by the Government in Committee that I need not detain the House longer. I beg to move.
§ Earl Russell
My Lords, if this amendment is not accepted, appealing against an asylum decision will be 523 getting a little like playing chess with Catherine the Great. The only player who ever beat her was a robot, or so we are told. That was very wise of him, I think.
§ 8.15 p.m.
§ Baroness Blatch
My Lords, the issue raised by this amendment is the operation of our two-tier appeal system. The first tier is the appellant's appeal against the Secretary of State to the adjudicator. Normally, whichever side loses can seek leave to appeal to the second tier, which is the Immigration Tribunal. Since the Home Office does not lose many asylum cases before the adjudicator, it is mostly applicants who seek leave to appeal to the tribunal. The tribunal refuses about 85 per cent. of applications for leave to appeal to it in asylum cases.
However, under the accelerated appeal procedure which was introduced with Parliament's approval by the 1993 Act and which Clause 1 now seeks to make more widely available, the Secretary of State can certify an asylum claim which he refuses if it meets the statutory criteria. The criteria proposed by Clause 1 are that: the claim is not just unfounded but manifestly unfounded, or fraudulent, or out of date, or frivolous or vexatious; or that it was submitted only after the refusal of leave to enter or the commencement of removal action; or that the applicant tried to gain entry on a false passport, or failed to present a passport at all and did not give a reasonable explanation of this; or that he is seeking asylum from a country which has been designated with Parliament's approval as one where there is in general no serious risk of persecution.
The purpose of the accelerated appeal procedure, which as I say is not new, is to enable categories of claims which are likely to prove unfounded to be processed quickly, in order to deter such claims from being made and so reduce the burden on the appeal system. Where the adjudicator upholds not only the refusal of asylum but also the Secretary of State's certificate, the appellant is denied the avenue to the tribunal. This is so that, apart from the option of judicial review which will always be available as a long-stop safeguard, the failed appellant will be removable at an earlier point than would otherwise be the case.
It has been argued that this is unfair, and in particular that it is unfair that the Secretary of State will, as now, still be able to seek leave to appeal to the tribunal if he loses, but the appellant will be denied this right if the adjudicator upholds the certificate.
I do not agree that there is any unfairness. The first point to make is that the Bill does not invent or change the accelerated appeal procedure. It merely extends its scope. This situation has prevailed for some time. As I have pointed out, it was introduced with Parliament's approval in the 1993 Act.
Secondly, the adjudicator can restore the appellant's avenue to the tribunal if he considers that the certificate has been wrongly made. For example, he may agree with the Secretary of State's decision to refuse asylum but may nevertheless overturn the certificate because, for example, he does not agree with the Secretary of State's view that the applicant is a national of a 524 designated country, or that the claim is fraudulent, or that the applicant's explanation for failing to produce a passport on arrival was not a reasonable one.
Given that safeguard, I see nothing unfair in removing the appellant's avenue to the tribunal, provided that both the Secretary of State and the adjudicator have agreed that the claim is not only unfounded but also fits one of the criteria for certification.
And it does not at all seem to me to follow that there should be circumstances where the Secretary of State also is denied an avenue to the tribunal. That is to draw an entirely false equivalence. The purpose of curtailing the appeal process is to enable the refused applicant to be removed quickly where two authorities have agreed that the claim is unfounded. But, where the adjudicator and Secretary of State disagree about the validity of the asylum claim, a different situation exists. I see no comparable argument in that case for cutting off the avenue to the tribunal.
The amendment would in fact have perverse effects. It would actually advantage applicants who had made their claims in suspect or abusive circumstances. Let us take two contrasting cases. One applicant comes here specifically to seek asylum and does so honestly as soon as he arrives. The other makes no claim for asylum for months or years until, having been found working illegally and been served with removal or deportation papers, he fends off removal by claiming asylum. Let us suppose that both claims are refused. Under the Bill, the Home Office would rightly be able to certify the second application under sub-paragraph (5)(c) in order to enable the appeal to be accelerated. Now, what do we find if we apply the noble Lord's amendment to these two examples? It would remove the Secretary of State's avenue to the tribunal in the second case just because the applicant had waited until he was about to be removed before making his asylum claim. That seems to me to be a very odd outcome.
In other words, asylum applicants would actually stand to benefit in this respect by withholding their asylum claim rather than declaring it honestly at the outset. Similarly, the amendment would mean that, where applicants had their claim certified because they had concealed their travel documents from the immigration officer or had sought to pass off a false passport as genuine, the Secretary of State would be denied access to the tribunal precisely because of the abusive circumstances in which the applicant had sought entry. Again, that strikes me as perverse.
I would remind your Lordships that many or most refused applications will not attract a certificate. I have also made clear that certification will not be automatic. We will not, for example, certify a claim if, despite meeting the certification criteria, it raises particularly novel and complex legal arguments on which there is no clear case law. I should also stress that the Home Office currently operates a sensible policy in terms of when to appeal to the tribunal. For example, we do not normally appeal to the tribunal purely on the grounds that the adjudicator found the appellant credible whereas the Home Office did not, providing the adjudicator had considered all the evidence fully and carefully. Indeed, 525 in 1995, the statistics record the Home Office as having made only 40 applications for leave to appeal to the tribunal. I hope the House will resist the amendment.
§ Lord McIntosh of Haringey
My Lords, my deepest suspicions are aroused whenever I hear a Minister say that they will apply the provisions of the Act sensibly, as the Minister just did, or when they say that they will not automatically apply the provisions—in this case of sub-paragraph (5) in Clause 1 of the Bill. That means that they have drafted the Bill more severely than they mean to apply it, and that must be bad law. It must be bad for our legislative system if Ministers say, "We provide for the worst cases but we are not actually going to apply them". It means that we have executive discretion over the provisions which Parliament provides. We want Parliament to make reasonable and sensible provision—to use the Minister's words—and the executive should then apply the law that Parliament determined. It is a fundamental principle and one which was breached by the speech the Minister gave.
The noble Earl, Lord Russell, gave us the case of a robot playing chess against Catherine the Great. I give the Minister the credit of being the robot rather than Catherine the Great. She is repeating words that are written for her rather than words in which she believes. I do not accuse her of any of the other characteristics of Catherine the Great.
It was another stonewall answer to what was a perfectly serious amendment which deserved proper consideration. The Minister did not answer the case that was put; that is that, if the denial of appeal to the tribunal applies to the appellant, then it should also apply to the Secretary of State. The Minister gave a number of examples of what she called perverse effects, but those effects only arise because of the way in which the clause is drafted and because it is now possible, through a whole series of complementary sub-paragraph (5) in Clause 1, for the accelerated procedure to be triggered and, whatever the Government may say, for applicants to be denied rights to the full consideration of their application.
As I said at the beginning, I find that approach to this issue deeply unsatisfactory. In this case the Government are condemned out of the Minister's mouth, out of her brief. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury moved Amendment No. 22:
Page 2, line 32, at end insert ("unless, in claims certified under sub-paragraphs 4(b) or 5(c), in the opinion of the adjudicator the appellant has a reasonable explanation for the circumstances which led to certification.").
§ The noble Lord said: My Lords, Amendment No. 22 arises out of a discussion that we had in Committee on 30th April, to be found in cols. 1499 and 1500, where the Minister said that, if a certificate was issued by the Secretary of State and a case did go through the accelerated procedure, the adjudicator who heard the appeal could set the certificate aside. Then, presumably—though the Minister did not add this corollary—the case would be adjourned so that the 526 asylum seeker had the same amount of time to prepare his case as if the certificate had never been issued and the right of appeal to the tribunal would then be restored.
§ I asked the Minister whether, since this power of the adjudicator was not made explicit on the face of the Bill, the Government would agree to an amendment on Report stage to give effect to her words. I was encouraged when she raised no objection to that proposal. As the Bill stands at present, sub-paragraph (7) of Clause 1 says without qualification that, if any of the conditions mentioned in sub-paragraphs (3), (4) and (5) apply, Section 21 of the 1971 Act shall not confer on the appellant any right of appeal to the Immigration Appeal Tribunal.
Apparently the adjudicator does not have any power to set aside the procedure. My amendment says that, if the adjudicator is of the opinion that the claimant has a reasonable explanation for producing a passport,
which was not in fact valid and failed to inform the officer of the fact"—
sub-paragraph (4)(b)—or if he makes an application after the events referred to—sub-paragraph (5)(c)—then he or she will not forfeit the right of appeal. That seems to me to be what the Minister agreed in Committee.
§ My noble friend Lord Russell quoted from a briefing from UNCHR in which an interpretation was given of Article 31 of the Convention on Refugees. There seems to be a difference of opinion between my noble friend and the Minister on the interpretation of that article and particularly on the question of what is meant by a "penalty". My noble friend took the view that a penalty meant any disadvantage which the claimant for asylum might suffer, whereas the noble Baroness appeared to be interpreting it far more narrowly as some sort of punishment before a court, even though in a previous debate—col. 1120 on the first day of the Committee proceedings—she admitted that a person would suffer a penalty if he or she was put through the fast-track procedure.
§ When the adjudicator comes to consider a fast-track applicant who has a reasonable explanation for his or her failure to comply with the provisions mentioned, then one of the matters the latter can lay before the adjudicator—for example, if he made the application for asylum one day after he landed at Heathrow—is that he had reasonable grounds for not making the application immediately and was entirely within the terms of Article 31 of the Convention. That seems plainly to imply that a person may lodge an application shortly after and not at the instant of arrival in the country. The appellant would then be able to plead that he was within the terms of Article 31 and it would be a matter for the adjudicator to decide in considering whether to set the certificate aside. That may go part of the way towards meeting the dispute between my noble friend and the Minister because, if in the event the adjudicator did not see the force of an argument concerning Article 31, then the matter could subsequently be contested before the European Commission on Human Rights.
§ We should lay this provision down as a marker for adjudicators; that is, that they must be careful not to declare that a person should be liable to the penalties of 527 certification if, by doing so, they will fall foul of the Convention and thus make the Home Office liable to yet a further defeat before the European Commission and Court. I beg to move.
§ 8.30 p.m.
§ Baroness Blatch
My Lords, I shall be a little repetitive because I have addressed almost all the points that have been raised by the noble Lord in the course of moving the amendment, and in particular the Article 31 points which he mentioned. We have consistently made it clear that we expect asylum seekers to be candid with our immigration authorities on arrival. We accept in principle that there might be circumstances where a genuine refugee would need to use false papers in order to flee a country in which he had had a genuine fear of persecution.
Under the Bill, no adverse consequences arise for the asylum seeker merely because he presents an invalid passport provided that he informs the immigration officer of that fact. But what is unacceptable and casts doubt on his credibility is an attempt to pass off a false passport as genuine. It is the dishonesty inherent in that attempt which triggers the accelerated appeal procedure if, after proper consideration, the claim is refused. I do not accept that the Bill should anticipate there being "a reasonable explanation" for such conduct. After all, those presenting false papers to immigration officers are not doing so out of necessity, but, by definition, they have already fled the country in which they claim to fear persecution and have arrived at their chosen place of safety.
The same point applies to overstayers and illegal entrants who claim asylum to fend off removal. In our view it is wholly unacceptable to insert an open invitation to late applicants to provide an excuse for their failure to claim earlier. Of course the Bill does not compel the Secretary of State to certify the claim and we would not do so if, exceptionally, we were satisfied that the lateness of the claim resulted from a genuine change of circumstances, such as news from the country of origin that the applicant was wanted by the authorities. But it would have to be a pretty extraordinary and convenient coincidence if such news happened to arrive just when the illegal entrant was about to be removed after he had been here for perhaps several years. And if we were satisfied that such news had indeed arrived coincidentally, we would be likely to grant asylum or exceptional leave to stay. I recommend strongly against legislating for such coincidences. Almost every late applicant would inevitably seek to exploit "a reasonable explanation" proviso and that could frustrate the objective of accelerating such appeals.
I have given full and detailed reasons, both today and during earlier stages of the Bill, why we are unable to accept an amendment in these terms. Nothing that has been said by the noble Lord has changed my mind on that.
§ Lord Avebury
My Lords, if the noble Baroness will allow me to say so, she has not addressed the substance of the amendment at all. I do not think her mind was on 528 what I was saying. I was not talking about the exercise of powers by the Secretary of State. I was talking about the right of the adjudicator to set the certificate aside. Perhaps I may remind the noble Baroness of the words she used on 30th April:If in the case put to the adjudicator there is good reason why he should not have received a certificate in the first place, the adjudicator could set the certificate aside".—[Official Report, 30/4/96; col. 1499]Nothing could be plainer than that.
§ Baroness Blatch
My Lords, I have made it clear endless times in the course of our debates, both today and on other occasions, that adjudicators can set the certificate aside and can take a different view from the Secretary of State on issuing certificates. But I have addressed quite directly, in the course of speaking to this amendment and a similar amendment earlier, that we do not wish to put on the face of the Bill the fact that a reasonable excuse is a key reason for setting the certificate aside. The adjudicator will make up his or her own mind as to what reason he or she produces for setting a certificate aside.
§ Lord Avebury
My Lords, how on earth can he make up his mind to set aside a certificate when he is not given power to do so in the Bill? That is precisely the point of the amendment. I am only asking for the noble Baroness to agree that effect should be given to the words she herself used and which I have just quoted. If she really wants me to produce an example of the kind of case where I think she would be bound to agree that the adjudicator would like to exercise such powers, I can do so.
If the certificate is issued and then circumstances change in the country of origin between the issue of the certificate and the appearance of the applicant before the adjudicator, such that he would find himself at serious risk when he was sent back to the country of origin, the adjudicator might have very reasonable grounds for setting the certificate aside. But I do not want to spell out such grounds out on the face of the Bill. I am only trying to do what the noble Baroness suggested we had already achieved, which was to give the adjudicator power to set aside a certificate which has been presented to him by the Secretary of State. If the noble Baroness cannot see that point, I must take counsel by withdrawing the amendment and coming back with it at Third Reading after perhaps trying to argue with her privately to make her see the error of her ways. If she has not divined that her own words gave authority for the amendment, I do not quite know what I am going to be able to say to convince her.
§ Baroness Blatch
My Lords, the noble Lord will continue to argue with me over many things. I spend a good deal of my week every week responding to detailed inquiries from the noble Lord. I do not think much will change on that point. I have said that if the adjudicator believes that the certificate has been wrongly produced by the Secretary of State, the adjudicator can set that certificate aside. I have said repeatedly, not just to this amendment but to similar amendments, that we do not intend to put on the face of 529 the Bill an excuse such as having a reasonable explanation. It would invite all the abuses that we have had endlessly from asylum seekers who use that as a mechanism for delay. We are not prepared to go that far.
§ Lord Avebury
My Lords, if I copy the noble Baroness's words precisely from her speech in col. 1499 of the Official Report of 30th April, where she said,good reason why he should not have received a certificate",will she accept an amendment to that effect on Third Reading?
§ Lord Avebury
My Lords, those are the noble Baroness's own words. I am absolutely flabbergasted. However, in the circumstances, I suppose I have no alternative but to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs moved Amendment No. 23:
Page 2, line 44, at end insert—
("'persecution' includes persecution either by the state or its agents or by persons acting independently of the state's authority, if the acts are knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection."").
§ The noble Lord said: My Lords, the definition of "persecution" based upon the 1951 Geneva convention seems reasonably clear. Nevertheless, there have been doubts over recent years as to how various governments have interpreted the convention, particularly the definition of the word "persecution". This amendment seeks to make it clear that persecution is either persecution by the state or its agents or by persons acting independently of the state's authority, if the acts are knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection. Where the state prosecutes individuals, the situation is reasonably clear. The doubts come when people claim to suffer from persecution not from the state itself but from other organisations or paramilitary groups that may be acting independently of the state and over which the state has no control.
§ The purpose of this amendment is to ensure that persecution by both bodies—by the state or by bodies independent of the state—should all be considered as persecution for the purposes of the Bill. The amendment is important because the European Union had a resolution some time ago which would mean that only those persecuted by the state could be recognised as refugees. That was a quite negative and restrictive resolution and one which would undermine the rights of many asylum seekers who, if they were sent back, would face the same persecution from which they had fled even if the acts of persecution were not themselves committed by the state.
In commonsense terms, it is a very simple proposition and it is easy to understand. The UNHCR understood that very well. Perhaps I may quote from a statement it issued in 1995:
To UNHCR, refusing refugee status to people who have been subjected to, or who fear, persecution by agents other than their own government is contrary to the text and to the spirit of the 1951 convention. Persecution which does not involve state complicity is still persecution. The Convention applies when the state is unable, as well as unwilling, to protect such people".
Nothing can be clearer than that.
§ Perhaps I may give the House one or two examples which will illustrate the situation. When I was with the Refugee Council we were very concerned about asylum seekers being returned to Zaire. I have not got the letter in front of me, but some years ago the then immigration Minister wrote that there was no persecution of asylum seekers who were returned by the Government of Zaire. But the letter went on to admit that there could be dangers from paramilitary organisations not under the control of the government. Although the British Government were sending people back, they were in effect conceding that there were dangers to returned asylum seekers from bodies which were behaving in an illegal manner as far as the state of Zaire was concerned and who were not under the control of the state. They were subjecting the asylum seekers to danger and persecution.
§ But Zaire is not the only country to which this might apply. The case of Algeria is very clear. Many individuals who do not abide by some Islamic customs and those associated with the West, have become targets for Islamic fundamentalism. Such people have fled to safety and yet that persecution is not from the Government of Algeria or its associated agencies, but from organisations which are hostile to its government. The Government of Algeria is simply unable to protect such individuals. Somalia and Liberia are two other examples where the collapse of state authority has meant that paramilitary groupings, not to do with the state directly or indirectly, have made life miserable for individuals and can cause persecution.
§ So the proposition is simple. Persecution can happen when the state causes it, or it may happen when organisations within a country that cannot be controlled by the state, persecute individuals. Both forms of persecution are very real and threatening. The purpose of this amendment is to make it clear that both such forms of persecution should be recognised, as has been recommended by the United Nations High Commissioner for Refugees. I beg to move.
§ Baroness Williams of Crosby
My Lords, I appreciate that the Minister may be unable to accept this amendment directly without further thought, but perhaps I may put before her a couple of matters for consideration which the Government may want to look at before we reach the end of the passage of this legislation.
It is clear that a number of governments are trying to escape some of the growing stringencies laid down by international conventions, by effectively using agents which they claim to have nothing to do with, to carry out operations that those conventions would make unacceptable and which would be outlawed by international law. Perhaps I may give an example which comes close to the hearts of everyone in this Chamber. That is the way in which General Galtieri's regime used death squads to destroy some of those who protested 531 against the dictatorship of Argentina during and after the Falklands War. The Minister may remember some of the stories that were told at that time about the "Disparados". I know something about it because Dr. Raul Alfonsin who was the elected democratic successor to General Galtieri, pursued some of the cases against members of the military and others for killing some of the opposition and other voices of dissent in Argentina at that time.
They were able to argue that that had nothing to do with the government and that they were not responsible for the actions that were taken by a section of the military and some sections of the police. Clearly, the government were fully aware of what was going on and probably inspired it. Effectively, this group of people was in a sense able to pretend that it was not directly an agent of the government.
I appreciate that this is a complex issue. I am sure that at the moment the Government will not feel able to accept the amendment just like that. Persecution may well be a growing problem. It is characteristic of some of the central American regimes as well as of the previous regime in Argentina. It is important to try to find formulae and words that will bring some of these governments within the scope of international conventions which almost entirely address themselves to the official state apparatus. I suspect that this will prove to be a growing problem. I commend for the thoughts of the Minister and the Home Office the issue of persecution by those who are not nominally agents of the state, but in practice very often are their agents. It is going to be a growing international legal problem.
§ 8.45 p.m.
§ Lord Renton
My Lords, I have been very interested by what we have heard from the noble Lord, Lord Dubs, and from the noble Baroness. But I must point out to them that the burden of proof as regards persecution lies on the person seeking asylum. The more we tie them down to detail the more difficult it will be for them to discharge that burden of proof. I suggest that from their point of view it is much better to leave the broad expression "persecution" there. It will make it simpler for them to prove their case. If we tie them down to this kind of restrictive detail the asylum seekers may find it hard to do so. Although I am one of those people who wish to see our asylum rules strengthened, on this occasion I have to point out that, bearing in mind where the burden of proof lies, this amendment would not be helpful.
The Earl of Balfour
My Lords, perhaps I may add one further word here. In the case of a civil war, surely there is already provision for persons who are persecuted under those conditions to be permitted to come to this country. I wonder whether this amendment is either necessary or desirable.
§ Baroness Blatch
My Lords, there is no universally agreed definition of an agent of persecution. But I hope that those supporting this amendment will be content when they understand our policy on this subject, which follows closely that set out in paragraph 65 of the 532 UNHCR handbook on procedures and criteria for determining refugee status. Persecution is normally related to action by the authorities of a country. However, we also accept that, in some circumstances, agents of persecution may be groups or elements within the applicant's country of nationality, other than the authorities. The noble Baroness has eloquently explained how that can sometimes be covert rather than overt activity. As set out in the UNHCR handbook, an applicant may qualify for asylum if the persecution by those other elements is knowingly tolerated by the authorities or if the authorities refuse, or prove unable, to offer effective protection, and the other inclusion criteria of the convention are met. In other words, we agree precisely with the way in which the noble Lord, Lord Dubs, set it out.
I do not consider that a statutory provision is desirable or necessary. It is the convention itself which engages our international obligations and which should be reflected in statute. The interpretation of the term "persecution", and more widely of the 1951 Convention as a whole, rests ultimately with the higher courts and is best left to case law.
The point that my noble friend Lord Renton made is very apposite. We believe that a rigid statutory interpretation is undesirable. Moreover, the amendment is flawed. Because of the way it is drafted, the interpretation that it seeks to impose would not apply to all asylum claims, but only to those falling within the scope of the special appeal procedure.
The European Union resolution of December 1995 on guidelines for the application of criteria for recognition and admission as a refugee sets out a joint position agreed by all member states of the European Union. But the resolution is not binding on member states. I recognise that the guidelines acknowledge persecution by third parties only if it is encouraged or permitted by the authorities. I can assure the House that we have no plans to depart from our long held broader interpretation, which I have already described and which follows closely that set down in the UNHCR handbook. I hope that the amendment will not be pressed.
§ Lord Dubs
My Lords, I thank the Minister. I should like to say a word or two about the comments made by the noble Lord, Lord Renton. He said that it would be simpler to have the system without all these qualifications. I wonder whether that is true. I can see that in some situations that may be advantageous, but I fear that where there is doubt about whether a non-governmental act of persecution falls within the 1951 convention, particularly stemming from the European Union resolution, that doubt can be removed by making it clear in statute that the persecution may take one of two forms. Although I question whether that would simplify the process in these circumstances, the noble Lord may well be right on the general proposition.
I turn now to what the Minister said. If I were completely satisfied that the Government had throughout acted according to that policy, I would be delighted and there would have been no need for the amendment. However, there have unfortunately been a number of instances where, as far as I can tell, the 533 Government have not acted fully according to the policy described by the Minister. I have already given an example relating to Zaire. I believe that that occurred a year and a half ago—it may have been a little longer—but it certainly did not happen so long ago as to come outside the Government's policy. The individual concerned was sent back to Zaire when the Home Office Minister—I believe that it was Mr. Charles Wardle at the time—admitted in a letter that other organisations, not under the control of the state, were liable to harass or threaten people who might return, but said that he was satisfied that the Government of Zaire were not indulging in such persecution. If the policy described by the Minister had been operating, I suggest that that individual would not have been sent back to Zaire.
However, the Minister has given assurances and we shall take her at her word. The Government's policy is now what the Minister has said that it is, and people who are being persecuted by individuals or organisations acting independently of the state's authority and which the state cannot control in any way fall within the definition of "persecution". That is fine. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Removal etc. of asylum claimants to safe third countries]:
Baroness Blatch moved Amendment No. 24:
Page 3, line I, leave out ("any of the provisions mentioned in subsection (2) below") and insert ("section 6 of the 1993 Act (protection of claimants from deportation etc.)").
§ The noble Baroness said: My Lords, in moving Amendment No. 24, I should like to speak also to Amendments Nos. 25 and 31. These technical government amendments remedy a minor technical defect in Clauses 2 and 3. They also make the third country provisions in the Bill easier to read.
§ At present, the Bill provides that, while an applicant can appeal against a third country certificate under Clause 3 of the Bill, he cannot bring an asylum appeal under Section 8 of the 1993 Act unless or until the third country certificate has been set aside by a special adjudicator. These government amendments adjust the Bill slightly so that an applicant cannot bring either an asylum appeal under Section 8 of the 1993 Act or a non-asylum appeal under the 1971 Act unless or until the third country certificate has been set aside by a special adjudicator.
§ The right of appeal under the 1971 Act on non-asylum grounds which would otherwise be available in third country cases would not generally be exercisable until after removal. But there would be a few cases where the asylum applicant could appeal on non-asylum grounds before removal, and this would represent an obstacle to quick removals. In practice, this would normally arise only where the applicant had an entry clearance for the United Kingdom. If the applicant had obtained that entry clearance while he was in his country of origin, it is most unlikely that we would seek to remove him on third country grounds. But if the 534 applicant had obtained an entry clearance for the United Kingdom while he was in a third country then we would seek to make a third country removal.
§ It may assist the House if I give an example of the type of case we have in mind. Let us suppose that a Ghanaian national had been in France for a while and had a French residence permit which was valid for another year; while in France, he obtained an entry clearance to come to the United Kingdom as a visitor; when he arrived in the United Kingdom he was refused leave to enter; and he immediately claimed asylum. We believe that France should be responsible for considering the applicant's asylum claim. Indeed, under the Dublin Convention, France would be the state responsible for considering the asylum claim. It is undesirable that in a case of this sort a quick removal should be delayed by an appeal on non-asylum grounds.
§ The amendments also dispense with the need for the various cross-references to the 1971 Act and the 1993 Act contained in Clause 2(2). The Bill as currently drafted disapplies a number of provisions in the 1971 Act as applied by the 1993 Act, which would otherwise give appeals suspensive effect. This is no longer necessary, and deleting the cross-references makes the Bill significantly easier to read. I hope your Lordships will welcome that. I beg to move.
§ On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 25:
Page 3, line 11, leave out subsection (2).
§ On Question, amendment agreed to.
Lord Dubs moved Amendment No. 26:
Page 3, line 25, after ("territory") insert ("has given an undertaking that it will substantively consider the application and").
§ The noble Lord said: My Lords, we are now dealing with the situation of an individual being returned to what the Government consider to be a safe third country. Many safe third countries are on the continent of Europe. Typically and frequently they include Belgium and France. They are countries through which an asylum seeker has passed, possibly fleetingly, possibly in transit at an airport; nevertheless the individual has spent a little time there. Under Clause 2, the Government may fairly easily remove an asylum seeker to a safe third country. The difficult question that arises is: what is to happen when asylum seekers reach that safe third country? Under what circumstances is it appropriate to return them? Are there sufficient safeguards? My belief is that there are not sufficient safeguards. That is why I have tabled the amendment.
§ As the Bill stands, the Secretary of State must simply be of the opinion that everything will be all right if the individual is returned to that safe third country. The purpose of the amendment is to tighten those provisions. The Secretary of State's opinion alone will not do. That country must be asked to give an undertaking substantively to consider the asylum application. That is a minimal request. It means that if we return an individual to Belgium or France, that country will have given an undertaking to consider the asylum claim. If it does not give such an undertaking and if it is not prepared to consider the asylum claim, there is a danger 535 that having been removed from Britain to that second country, the asylum seeker will then be removed from the second country to another country and so on down the line until he or she is forced to return to the original country where the persecution occurred.
§ It seems reasonable that before returning an asylum seeker the Secretary of State should have some assurance that that country will consider the application. I am asking for no more and no less than that. That is the purpose of the amendment. Without such an assurance, we run the dangers which I have already described.
§ I understand that appeals by asylum seekers against a third country removal have a high success rate of about 40 per cent. Clearly, therefore, within the existing statutory framework the adjudicators are concerned about what will happen to people when we remove them. It is wrong in principle and in breach of the 1951 Convention that individuals who have fled to safety cannot find a government which will consider their application. In removing people to safe third countries we run the risk of exposing asylum seekers to the danger that they will not be able to make a claim anywhere and will be forced to return to the country in which they were originally persecuted. It is a reasonable proposition and is entirely within the spirit of Clause 2, except that the clause is too weak. It is better that the Government get an undertaking from the third country than that the Secretary of State should simply believe that everything will be all right. I beg to move.
§ 9 p.m.
§ Baroness Williams of Crosby
My Lords, I speak to this amendment and the associated amendment, Amendment No. 28. The noble Lord, Lord Dubs, has referred to the need for a clear undertaking. Amendment No. 28 makes that stricter by requiring that it be a written undertaking. This is squarely and absolutely within the terms of the Dublin Convention which was signed by Her Majesty's Government in 1990. That convention is binding upon us and other members of the European Community.
I should like to refer to two articles of that convention. I refer first to Article 11. With the leave of the House, I should like to read a short phrase which appears in that article. If in line with Clause 2 of the Bill a country asks another country, in this case a safe third country, to consider an application which has originally been lodged with itself, the convention provides,If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged".I take it that means that if the application is lodged with the United Kingdom and the United Kingdom believes that the application should properly rest with a safe third country, in this case another member of the European Union, and that country refuses to take responsibility, under the terms of the Dublin Convention the responsibility rests with the United Kingdom, or in whatever other country the original application was made. That is what we have signed.
536 The purpose of this amendment is simply to underline that commitment made by all those who signed the Dublin Convention. It does so by saying on the face of this Bill, in line with the Dublin Convention, that there must be an undertaking from that other state. The only difference between this amendment and the Dublin Convention is that the latter is tougher. The Dublin Convention lays down a six-month time limit within which that other state must accept responsibility. The noble Lord, Lord Dubs, has not gone so far and has not insisted on a six-month time limit, but we are by law committed to that time limit and undertaking.
In Article 5 of the Dublin Convention reference is made to written agreements between states, not written agreements with specific relationship to this particular instance but to the general proposition of written agreements to determine where responsibility lies. It cannot be said that that is either impractical or impossible, since our Government have acceded to it. In my view, this amendment cannot be rejected by the Government without rejecting what is laid down on the face of the Dublin Convention. I very much hope that the noble Baroness will feel that, in line with that convention, she can accept the amendment. I support the amendment.
§ Earl Russell
My Lords, when we considered this amendment in Committee the noble Baroness said that she could not accept it without making the whole procedure unworkable. I hope that she is wrong about that. If she is right it means that we cannot legally operate the procedure at all. I draw the attention of the noble Baroness to a passage from the preamble to the UN Convention on the Status of Refugees, not all of which passage she will find uncongenial. It states:The high contracting parties, considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognised the international scope and nature, cannot therefore be achieved without international co-operation".It cannot be achieved without international co-operation because it does not work to have a game of pass the parcel, or pass the refugee around the world from one country to another. As many of us know, that process tends to happen at the expense of the airlines, and I can see no justice in that.
But that is not the only reason why it does not work. The major international obligation to which we are subject under the UN Convention is that contained in Article 33. I refer to the obligation relating to refoulement. The words of the article read:No Contracting State shall expel or return"—that is "refouler" in French—a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality",etcetera.
There is judicial authority in this country for the proposition that the words "in any manner whatsoever" include a billiard ball return via a series of third countries. It is those billiard ball returns which the amendment of the noble Lord seeks to prevent. If there is not an agreement in advance, for example if the 537 country to which the asylum seeker is returned states that the individual is an illegal entrant and they will not consider his claim, the individual ends up being sent back from where he came. That is refoulement, and it is the greatest breach of the convention that there can be. The noble Baroness should either accept this amendment or withdraw Clause 2. I hope that she can accept the amendment.
§ Lord Renton
My Lords, I am sure that the noble Earl realises that Amendment No. 26 in his name is in conflict with Amendment No. 28 in the name of the noble Baroness. The amendment in the name of the noble Baroness requires a written agreement covering all cases, or the general situation. Amendment No. 26 requires an undertaking to be given with regard to the particular application. While I am not committed to either, in those circumstances I prefer the general to the particular.
We are dealing with deportations. I know from experience years ago when I was involved in these matters in the Home Office that deportation is always a delicate, difficult matter. We have to get it right before we ever do it. The conditions laid down in subsection (3), which the Secretary of State and those advising him would have to observe, are stringent enough. He has to take great care. It is suggested—I shall deal with the more sensible, if I may say so, amendment of the noble Baroness—that he should not deport unless there is:a written agreement between the government"—of the country to which the person is to be deported—that that person will not be removed to another country"—that means a third country—until any appeal process has been exhausted or abandoned … in accordance with the terms of the Dublin Convention".I have to confess that I do not remember the terms of the Dublin Convention, but that may not be material to my argument. The conditions which the Secretary of State has to fulfil and certify, as set out in subsection (3), are stringent enough to ensure that no injustice is likely to be done. That is why I doubt whether either of the amendments is necessary. If one of them is thought to be necessary, as I say, I prefer that of the noble Baroness.
§ Baroness Blatch
My Lords, in Committee, I set out the Government's general position on agreements and undertakings in third country cases. It may assist the House if I restate our position. We are certainly not opposed to bilateral or multilateral agreements where they can be negotiated. The Dublin Convention will provide a mechanism for determining which member state is responsible for determining an asylum application lodged within the European Union.
Perhaps I may refer to the quotation used by the noble Baroness regarding the Dublin Convention. It does not mean what she deduced from it. It means that the UK must within six months approach the third country which it believes is responsible for considering the claim. The Dublin Convention provides a mechanism for considering disputes between member states about 538 which state is responsible for considering a claim. The text of the amendment cannot be derived from the Dublin Convention.
The United Kingdom ratified that convention five years ago. We look forward to it coming into force as soon as possible. In Committee, in response to a question from the noble Baroness, Lady Williams, I explained that the Dublin Convention would not come into force until two months after it had been ratified by Ireland and the Netherlands. The indications now are that Ireland and the Netherlands appear to be on course to ratify the Dublin Convention during the forthcoming Irish presidency of the European Union. We all hope that that will be the case. In the meantime, removals to France are covered on a case-by-case basis by a bilateral agreement which we have negotiated separately.
The Government do not, however, accept that third country removals should not proceed in the absence of an agreement with the third country. If we were obliged to obtain undertakings from third countries on a case-by-case basis, we would be unable to operate an effective third country policy. We could expect third countries to refuse to take applicants back. Applicants would know that they could travel from country to country, before finally claiming asylum in the United Kingdom, safe in the knowledge that we would not return them to the safe country from which they had come.
Amendment No. 26 would prevent the removal of an asylum seeker to a safe third country unless that country had given an undertaking that it would consider his asylum claim.
We do not see that as a necessary condition in third country cases. If the third country refuses to consider the claim substantively, it does not follow that there has been a breach of the 1951 convention or that the asylum seeker has been placed at risk. There are circumstances where the third country to which we had removed an asylum seeker might refuse to consider that person's asylum claim substantively, but the asylum seeker would not be at risk.
Let me give three examples. First, suppose we removed an applicant to France, and France immediately granted the asylum seeker leave to remain, but did not consider his asylum application. The applicant might, for instance, secure leave on the basis of marriage to a French national. In those circumstances, the applicant would be perfectly safe in France. There is no reason why we should obtain an undertaking from a third country that it will consider the asylum claim rather than grant leave on a different basis.
Secondly, suppose we removed an asylum seeker to France, and France had evidence that the applicant had originally travelled to France via Germany. It would be perfectly proper for the French authorities to conclude that it was Germany's responsibility to consider the application, and send the asylum seeker back to Germany. That is a second clear example of a case where the third country would have refused to consider the applicant's asylum claim, without in any way putting the applicant at risk.
539 The third example would be a case where the third country refused to admit the applicant and returned him to us. We hope that such cases would not occur too often. But the asylum seeker would not have to be exposed to danger and no breach of the convention would have occurred. These examples illustrate that there are a number of situations where the third country would not consider the asylum claim substantively but there would be no risk to the applicant. In the absence of binding multilateral agreements, the constraints imposed by the amendment would bring third country removals to a halt. Therefore, we cannot accept Amendment No. 26.
§ 9.15 p.m.
§ Baroness Williams of Crosby
My Lords, before the Minister sits down perhaps I may make one point of clarification. She was absolutely right in what she said and I was wrong. I referred to the fact that application had to be made by the third country within six months. I did not wish to detain the House by going on to further parts of the articles, but I should have made the point that where it is clear that if the other country does not accept that application within three months, not six months, it rests with the state which originally made the request.
My point was that an agreement between two countries with a time limit would already apply in the case of the Dublin Convention. I was trying to get on the face of the Bill the fact that there would be a written agreement between two countries with regard to this matter before an asylum seeker would be able to be sent to a third country. In other words, his right of appeal would be upheld even if he were sent to a third country within the terms of the convention. I am sorry if I did not continue to the further subsection of Article 11.
§ Baroness Blatch
My Lords, the Dublin Convention is intended to provide a clearer system of determining who was responsible for considering the claim in the first place. Then it provides a mechanism to resolve disputes in those cases, which is important. However, even the argument put by the noble Baroness is not an argument for saying that in every case where there is to be a third country removal there must be at the outset, even before, one can remove somebody to a third country, a written undertaking that it will consider the claim.
Amendment No. 28 would introduce a requirement for the Home Secretary to certify that there was a written agreement between the United Kingdom and the third country in question that it would not remove the applicant until his United Kingdom appeal had been completed. The Government have repeatedly made clear that they believe that that would be an unnecessary and unrealistic requirement to impose. It is unrealistic because no third country would be prepared to accept such an obligation. We would not be prepared to do so if other countries asked us. The amendment would therefore also bring third country removals to a halt.
The requirement which the amendment would impose is in any case unnecessary. I remind the House that we are talking about removals to a country within the 540 European Union or a non-European Union country with highly developed asylum procedures, not to the country in which the asylum seeker claims to fear persecution. There are circumstances in which it would be quite reasonable and proper for the third country to remove the applicant under its asylum procedures. If the safe third country had evidence that a fourth country—
§ Earl Russell
My Lords, I am grateful to the noble Baroness for giving way. Does she understand that the point at issue is not whether the country is generally safe but whether it will admit the particular asylum seeker to its processes?
§ Baroness Blatch
My Lords, no. As I understand it, the amendments concern accepting undertakings about what another country will do in the case of that person being returned. We are saying, first, that we do not believe that that is desirable or necessary and we believe that trying to get such assurances in advance would bring to a halt that part of the asylum procedure whereby we want to remove someone to a third country. The noble Baroness continues to cite the Dublin Convention. My understanding is that failure to respond within three months makes the third country responsible, not the United Kingdom.
There are circumstances where it would be quite reasonable and proper for the third country to remove the applicant under its asylum procedures. As I said, it also has obligations under international law. If a safe third country had evidence that a fourth country was in fact responsible for considering the asylum claim, it would be entirely proper for it to remove the applicant to that fourth country. Alternatively, if it considered an asylum application substantively under its own accelerated procedures, established that the applicant was not a refugee and refused asylum, it would be perfectly proper for it to initiate removal action. The third country would have established that the applicant was not in fact a genuine refugee, so there could be no breach of the non-requirement obligations under Article 33 of the convention. In both those examples the third country would have acted lawfully and responsibly.
The noble Lord, Lord Dubs, referred to the refugee legal centre, which claims that 40 per cent, of third country appeals are successful. Perhaps I may say, first, that 96 per cent, of third country refusals concern people who have entered the United Kingdom from a member state of the European Union. It is absurd that applicants should be able to delay removal by arguing at appeal the inherent safety of other European Union countries as safe havens for asylum seekers. The great majority of findings by adjudicators have supported the Home Office view that countries like France and Germany are safe.
The analysis of third country appeals by the Refugee Legal Centre last year does not support the claim that 30 per cent, to 40 per cent, of such claims are successful. On the contrary, the Report shows that 61 per cent, of third country appeals are dismissed and 22 per cent, are referred back for reasons other than inherent doubts about the safety of the third country.
541 It confirms also our assessment that doubts about admissibility owing to the passage of time are a major factor in referrals. Indeed, our assessment is that that has now become the most common reason for referral. Only 16 per cent. of the Refugee Legal Centre's samples were referred back because of doubts about the safety of the third country.
While the Government believe that multilateral agreements can be useful and look forward to the ratification of the Dublin Convention, they are firmly of the view that in order to operate an effective third country policy it is vital that we can remove applicants without prior consultation provided that we are satisfied that the third safe country criteria in Clause 2(3) are met. I ask the House to reject the amendment.
§ Lord Dubs
My Lords, listening to what the Minister said, the plight of asylum seekers seems to be akin to chess pieces being pushed around a chess board. These are human beings like ourselves who have been, in many instances, caught in very unfortunate and dangerous circumstances in their own countries and who are seeking safety somewhere else in the world. The thought that they can be moved around like pieces on a chess board because that is the way in which the system works better seems to me to be at the very least insensitive to what some of these asylum claimants have gone through before they arrive in this country or somewhere else in Western Europe.
Therefore, I do not believe that it is absurd that there should be arguments and claims, because people are fearful, not of being sent from Britain to France, but of what is to happen to them ultimately. That is what the two amendments are about. It is the ultimate fate of those individuals which concerns them and which concerns us, not the fact that they may be sent to another country which is safe. The problem is that they may end up in a country that is not safe. That is the purpose of these amendments.
I shall now deal with some of the specific points. I agree that the majority of safe third country removals will, in the first instance, be to another member of the European Union. But according to the Minister's own figures, 4 per cent.—I hope I have that right—will be returned to a country outside the European Union. That is not many people but it is still a significant number. It means that there are 4 per cent. of asylum seekers who have come from a country outside the European Union who will be returned to a country which is not within the scheme of the Dublin Convention, and possibly with fewer assurances as to their safety than they would have if they were returned to a country like Belgium or France. That is one area of concern.
Secondly, reference has been made to the Dublin Convention. We do not yet have that convention. It has been awaiting ratification by the European Union for five years. The Minister said that she hopes that it will be ratified during the course of the Irish presidency. That is fine. For all its faults, I believe that the Dublin Convention will clarify matters as regards movement within European Union countries.
542 But it is not appropriate for us to say that this amendment is not needed because the Dublin Convention will soon be in place. We cannot sit back and leave it to the Dublin Convention because that may not happen during the Irish presidency. It has been delayed on a number of occasions before and it is not reasonable to wait.
After all, the Government have similar provisions with regard to the housing of asylum seekers in two pieces of legislation before Parliament at present—the Asylum and Immigration Bill and the Housing Bill. That has been done because the Government wish to make sure that the housing aspect in relation to asylum seekers will be dealt with by the first piece of legislation to reach the statute book. The Government are backing both Bills to achieve certain ends, which I regret, and the space between the two Bills will be only a matter of weeks. Therefore, it is not right to say that we can sit back and wait for the Dublin Convention.
The Minister gave three examples, which I think were all hypothetical—and her excellent civil servants in the Home Office must have been working overtime to provide her with some of this material, I must say. She mentioned the situation of somebody being returned to France and the French Government would allow that individual to stay in France and not consider the asylum claim. I understand that and I suppose to that extent there is a technical defect in the amendment, but the spirit of the amendment would have been met if the wording had been along the lines of,has given an undertaking either that it will allow the person to stay or will substantively consider the application".If that had been the only objection on the part of the Minister, it would have been easy for the amendment to be withdrawn and brought back at Third Reading with the necessary change made to it. Of course that is probably not the Minister's argument.
Her second example was that the individual might be sent from France to Germany because the individual had spent some time in Germany prior to going to France and then from France to here. I think that is the essence of our concerns, because it would be from France to Germany and then from Germany to where? The danger is, as I said earlier, that the asylum seeker may find that no safe country will consider his claim so that in the end he will be shuttled back to the country from which he first came. That is the problem. Otherwise, provided that the asylum seeker is safe, we are not going to become over-concerned, although there are some anxieties which subsequent amendments will deal with. However, we shall not be over-concerned provided the person is safe. The concern is entirely that the person may not be safe. What happens when he is sent from France to Germany and then from Germany elsewhere? The last solution was that he might be shuttlecocked back to us, and then we have the miserable situation of them being moved backwards and forwards with no government being willing to take them.
I am not happy about what the Minister has said. I am sorry she could not give us any comfort at all, because from what she said earlier the Government accept the basic principle that asylum seekers should have rights under the Geneva Convention. However, the 543 Government have not taken the necessary and logical further step of saying that they will apply that principle to the situation of third country removals to provide the same sort of safeguard as is contained in Amendments Nos. 26 and 28. I am sorry about that but I think at the moment I have no option but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs moved Amendment No. 27:
Page 3, line 27, at end insert ("and
(d) that the person who has made a claim for asylum does not have close ties or connections with the United Kingdom.").
§ The noble Lord said: My Lords, I beg leave to move Amendment No. 27, which indeed is the amendment to which I have just referred. It really says that, if there is to be a third country removal, one of the reasons for not doing that would be if the asylum seeker claiming asylum here has close ties with this country. In other words, if the individual has a particularly close connection with this country—and I shall specify what they might be—then it would be appropriate for that individual's asylum claim to be considered here, notwithstanding the more general argument about third country removals, which concerns the previous amendment.
§ It seems to me it would be wrong, for instance, if the individual has a spouse living in this country, if the individual is an unmarried minor and has a parent in this country or if the applicant has an unmarried minor child in this country. There may be other connections; for example, if the applicant has had an education in this country, speaks the language or has other connections with Britain. It seems to me all these are some reasons why it would be appropriate and humane in exceptional instances to allow the asylum seeker to stay here notwithstanding the third country provisions. It is after all to the advantage of this country that asylum seekers who are allowed to stay here include people who have connections with this country so that they will perform well in terms of getting jobs, in terms of language, and so on. All this makes for the easier settlement of asylum seekers.
§ That should not be the only condition of course, because there might be asylum seekers who do not have such connections and who arrive perfectly legitimately in this country. But, where there are individuals who have close ties with this country, it seems to me almost absurd to remove them to France on what would to them, and to many Members of the House, seem a technicality. I beg to move.
§ 9.30 p.m.
§ Lord Renton
My Lords, we are now dealing with a situation where a person's claim for asylum has failed, but we must remember that in making that claim the person may well have made an alternative claim from the outset to be allowed to stay in this country because of close ties or connections. I give way to the noble Lord.
§ Lord Dubs
My Lords, I thank the noble Lord for giving way. Perhaps I may clarify the matter. The point 544 at issue is not that the asylum claim has been made and failed; the point at issue is that the asylum claim has not been allowed to be made and the individual is being removed without being allowed to make the asylum claim. That is the reason for saying that there should be exceptions as set out in the amendment.
§ Lord Renton
My Lords, I shall be interested to hear what my noble friend the Minister has to say on the matter. However, under this clause, I should have thought that the circumstances were different from those assumed by the noble Lord. In all such cases of persons having a close connection in this country, I should have hoped and believed that when they claimed for asylum mention would have been made of the fact that they had such a close claim connection which, very often, quite apart from asylum claims, is a good reason for being granted leave to remain here. Therefore, the proposed provision to introduce arrangements to allow for a last minute appeal seems to me to be inappropriate. However, I wait with interest to hear the response of my noble friend the Minister.
§ Earl Russell
My Lords, I believe that the noble Lord, Lord Renton, has misinterpreted the point at issue. We are dealing with Clause 2 and with safe third country cases. They are cases where someone comes to the United Kingdom, perhaps via France, Belgium or wherever, and attempts to claim asylum here but is not allowed to do so because he has passed in transit through a safe third country. It may only be Schipol Airport but it still counts.
The effect of the amendment would be to allow a person, regardless of the fact that he transited through a safe third country to make a claim for asylum in this country rather than there because he has close family members in this country. Keeping families together is not an objective to which I am indifferent. I do not believe that it can be done by coercion or force, but where people want to do it I believe that the state is extremely misguided to discourage them. In effect, I believe it to be an interference with family life and possibly even contrary to Article 8 of the European convention. The amendment would allow people to claim asylum in the country where their family lives and not in a country where it does not.
I have known cases where asylum has not been granted which have led to an immense amount of correspondence, in respect of which I must say that the noble Baroness and her department have been extremely helpful—indeed, I would like to thank them—as regards making arrangements for access to children where one parent lives in one EU country and the other parent lives in another. It is in everyone's interest to avoid that sort of complication. I am sure that the noble Baroness would not mind if I had to write her rather fewer letters.
§ Baroness Williams of Crosby
My Lords, before the Minister replies perhaps I may add one further consideration to the debate. As my noble friend said, there is a conflict here between the concept of maintaining the value and integrity of the family and the wish to find a safe third country to which people might go. I absolutely concur with my noble friend that there 545 can be no better argument for the choice of a country to which an asylum seeker makes his or her case than there being close family ties which—dare I say it?—in the Dublin Convention are defined as a spouse, a child under 18 or a parent of someone who is under 18; in other words, a very tight family unit.
One might have thought that it would be inconceivable for one even to have to make such an argument as regards a spouse, a child or an immediate parent. Although the case is different because it concerns an illegal immigrant rather than an asylum seeker, the case of Mr. Tong who is to be considered for deportation after 27 years in this country, despite having a wife and child both of whom are English citizens, makes one fear that the Home Office does not take family ties very seriously.
I believe that Mr. Tong is currently living in a church in Cornwall. Simple common sense makes it almost impossible to believe that our country would deport a father of a minor child, tearing him away from his wife who is a legitimate citizen of this country, albeit I do not deny for one moment that he was technically in breach of the Immigration Rules. He has committed no crime beyond that.
I urge the noble Baroness to consider the point that we all make about the belief we have in the integrity of family ties. One of the most cruel things that one can do is to rip a family apart, sending one member to one country and another to another country. That is all the more so when people have little to tie them to life other than their family ties. I hope that the noble Baroness will reconsider her response to the amendment.
§ Baroness Blatch
My Lords, I am puzzled by the amendment. In Committee I gave a full account of our discretionary policy on family ties. Indeed, the noble Lord, Lord Dubs, described my statement as clear and helpful. He thanked me for my clear explanation of the way in which close family ties and other connections are respected by the Home Office. Therefore, I find it a little surprising that we are discussing the amendment again at this stage of the proceedings.
Under the concession that we operate, asylum seekers are not normally removed to a safe third country but are instead admitted into our own asylum procedures if they have close ties here. My account of the concession can be found in Hansard of 30th April at cols. 1587 to 1589. The details of what are regarded as close ties have also been published in Butterworths Immigration Law Service. We have made clear that we have no plans to alter that concession.
Other cases where removal to a third country may be waived, depending on the merits of the case, are where the applicant is an elderly or otherwise dependent parent, and where the family link is not one which would normally be considered but where there is clear evidence that the applicant is wholly or mainly dependent on a relative in the United Kingdom and there is an absence of any similar support elsewhere. In such cases, linguistic or cultural links with the United Kingdom and the third country could be taken into account.
546 We believe that these are sensible and reasonable considerations to apply in individual cases.
The Secretary of State must, however, retain the flexibility to decide whether the circumstances of a particular case justify the exercise of discretion in the applicant's favour. In exceptional cases, there may be circumstances where it would be entirely appropriate to remove an applicant to a safe third country, even though they may have close ties or connections with the United Kingdom.
An example would be a non-European Union national who commits a criminal offence in another European Union country and who attempts to gain entry to the United Kingdom on asylum grounds to avoid prosecution. Even if the applicant could demonstrate close ties with the United Kingdom, it might well be appropriate to return him to the EU country rather than consider the asylum claim here.
I have explained to the House that our discretionary policy ensures that family ties are taken into account, while preserving the flexibility for the Secretary of State to exercise his discretion in cases where it would be desirable to make a third country removal, notwithstanding the applicant's close ties with the United Kingdom. Amendment No. 27 provides no scope for discretion in such matters. I ask the House not to accept the amendment.
§ Baroness Williams of Crosby
My Lords, before the noble Baroness sits down, can she say anything about the case of Mr. Tong? I appreciate that it does not fall fully within the terms of this provision, but it falls within the consideration of close family ties.
§ Baroness Blatch
My Lords, as the noble Baroness appears to know something about Mr. Tong, she will know that he has abused the system in this country. I hope that the noble Baroness is not condoning the harbouring of people who abuse the system. They should ensure that they press their case in the proper way. That person has not done that. I cannot read my note. I shall write to the noble Baroness.
§ Baroness Williams of Crosby
My Lords, I apologise to the noble Baroness. I know that I am pressing the good will of the noble Baroness. She said that she hoped I was not pressing the case of people who abuse our hospitality. That is a perfectly fair point and I wish to put that on the record. However, the man in question has married and has a child born in this country. We are talking about a period of 27 years. His child is young and common sense might suggest an act of mercy in this case which I would not normally ask for. Two British citizens will be left fatherless and husbandless respectively. I stress that I am talking about a period of many years.
§ Baroness Blatch
My Lords, the noble Baroness hinted at how long this case has been continuing. However, the figure she mentioned is not quite right. I understand this matter has gone on for 17 years. Mr. Tong married recently, and after deportation orders had been made. As the noble Baroness pointed out, the child is young. However, the concept of sanctuary no 547 longer exists in law. Mr. Tong cannot expect to benefit from his continued defiance of the law by remaining in the Methodist Church in Cornwall.
Earl Russell moved Amendment No. 30:
Leave out Clause 2.
§ The noble Earl said: My Lords, this amendment seeks to remove Clause 2 from the Bill. At the same time I ask the House to consider Amendment No. 34—that Clause 3 should also be deleted—which is strictly consequential upon it. The noble Baroness said in response to Amendment No. 26 that it would bring third country removals to a halt. If that is so, third country removals must be brought to a halt for either they are done as part of a co-operative agreement, with undertakings that people will receive those we send to them, or they are manifestly unsafe under international law.
§ I have been trying for a long time to put across the point that what concerns us here is not whether the country is generally safe, but whether people will be admitted to the process. I have to say to the noble Baroness what the right reverend Prelate the Bishop of Guildford once said to her during a lengthy education Bill: it is not that we cannot get her to meet our concern; it is that we cannot get her to accept that this is our concern. It often happens with third country removals to EU countries that the person concerned is not admitted to the process and so their claim is never even considered.
Tonight the noble Baroness spoke dismissively about the Belgian practice of removing people to Zaire. However, one of her adjudicators has stated:
It is of course well known that there are close links between Belgium and Zaire … (there) is sufficient evidence … to show that it is not safe for (this appellant) to be returned there".
§ She spoke somewhat dismissively about the case of ex parte Bostam. She argued as if that were an isolated case. However, that was not an isolated case. It arose from a general principle of Belgian law; namely, if you are applying for asylum in Belgium, you must do so within eight working days of arrival, which, of course, those who have been in transit to the UK and then been returned to Belgium very often have not. One of the learned judge's reasons for oversetting the adjudicator's recommendation was that he had not taken into account the evidence before him that the Belgian authorities had wrongly determined applications as manifestly unfounded because the applicants had been returned to Belgium on third country grounds. Mr. Justice Hidden found that removal to Belgium was unsafe because that sort of thing had happened before. It is not a single case. It is a systematic one.
§ It is also a regular problem in France that anyone returned to France under the third country procedure tends to be found to be an illegal entrant. That happened 548 in the recent case of Mr. Ali Iqbal. On 3rd March 1996 he was returned to France under the third country procedure. He was immediately arrested at the Gare du Nord as an illegal immigrant. No attempt was made to investigate his claim. He was not allowed to speak to his lawyer. On the same day he was served with an expulsion order to Pakistan and an order of detention pending expulsion. That is a normal procedure when we send third country removals to France. Some of the features of Mr. Iqbal's case were extreme, but the basic principle of holding such people to be illegal entrants is normal. Under those circumstances I cannot see how a third country removal to France can possibly be regarded as safe unless we have an undertaking in advance.
§ In the case of Greece, there has been enough trouble for there to be a general UNHCR health warning on the return of third country applicants to Greece. A recent case in Italy also led the UNHCR to give a health warning. An applicant from Sri Lanka was returned by Italy, curiously, to Thailand, which is not a convention signatory and he therefore enjoyed no protection there under the terms of the convention. There are plenty of such cases. All those cases carry the risk of refoulement.
§ There is English judicial authority for the principle that this billiard-ball refoulement constitutes refoulement under the UN convention and is therefore illegal under international law—and, what is more, under an element of international law which, by the 1993 asylum Act, has been incorporated into British law. So unless we can be certain that the third country will consider the application, removal to a third country severely risks being illegal under international law. Noble Lords will see why I say that unless we can get undertakings from a third country, it is manifestly unsafe. The noble Baroness said that we cannot get undertakings; it will not work. Therefore I say that it is unsafe. I beg to move.
§ 9.45 p.m.
§ Baroness Williams of Crosby
My Lords, I wish to pursue one matter so that it can be considered when the noble Baroness comes to respond. It concerns how Clause 2 is affected by the amendment the Government conceded on the issue of torture earlier today. Will the Minister tell the House what is the position in relation to those found to have a reasonable claim to have been tortured in a country with regard to their return to a third country other than the one in which they were tortured? I am talking about somebody who has satisfied the terms of the noble Baroness's amendment. How will such a person be treated in respect of being returned to a third country, especially in a situation where that third country has not given an undertaking that the processes will be carried through to their conclusion in that third country?
I mention this matter because of the very considerable evidence from, among others, Judge Tumim, as he then was, on his visit to Campsfield Detention Centre last year, giving clear indications that people who have suffered torture are particularly liable to great stress and trauma if they fear that they will be deported to another country, especially one about which they know nothing.
549 Judge Tumim said in his report on Campsfield:The fact is that some detainees appear to be terrified at the prospect of being deported".In the case of somebody who is about to be deported not to the country from which he came but to a so-called safe third country, that trauma will be very acute. This House has made very plain its special concern for victims of torture. It is our view on this side of the House that in a situation in which refouleinent could occur (my noble friend Lord Russell outlined that possibility) in the particular case of a victim of torture it amounts to a kind of additional torture itself. They are then faced with terrible uncertainties and fears about where their future may lie.
Perhaps the Minister would be kind enough, when she responds to this short debate, to tell us how she sees the impact of the first amendment to Clause 1 on Clause 2 with special reference to the sending on to a third country of a victim of torture.
§ Baroness Blatch
My Lords, perhaps I can begin with the final point. Clause 2 is not affected by the torture amendments. In third country cases we do not consider the substance of the claim; we rely on that country to do so. However, we will not return a person who is medically unfit to travel, so a judgment will be made about the specific medical state of a person who is seeking asylum.
In the Bostam case, Mr. Justice Hidden did not find that the removal to Belgium would be unsafe; only that there were unsatisfactory aspects of the earlier adjudicator's decisions upholding removal to Belgium.
§ Earl Russell
My Lords, I am grateful to the noble Baroness for giving way. Mr. Justice Hidden found return to be unsafe for that applicant. I have always said that "unsafeness" can only ever be in relation to the specific applicant. There is no such thing as a safe or unsafe country.
§ Baroness Blatch
My Lords, going back to what Mr. Justice Hidden found, he did not find that removal to Belgium would be unsafe; only that there were unsatisfactory aspects of the decisions of earlier adjudicators upholding removal to Belgium. His was a judgment based on procedural considerations, not on an assessment of the safety of Belgium.
The noble Earl referred to France in regard to Mr. Iqbal. The allegations relate to a single applicant and a single French port and do not in themselves provide cause for us to doubt the general safety of France. I understand that the person at the centre of the allegations is in Paris and his asylum application is receiving consideration from the authorities. Nonetheless, special adjudicators have shown that they are concerned about the allegations and we are presently investigating the precise circumstances of the case.
Allegations have been made before that France gives inadequate consideration to asylum seekers returned from the United Kingdom. We investigated one such case last year and found that the applicant had not in fact claimed asylum in France. Over the past year or so 550 most adjudicators have upheld the Secretary of State's certificate in French cases, and in many of those cases where they did not the issue of concern was not the safety of France but the time which had elapsed since the applicant had arrived in the United Kingdom.
I referred in detail to the removal of asylum applicants to safe third countries at Second Reading, in addressing amendments at Committee stage and in speaking to amendments throughout today. I have defended the importance of Clause 2 to this Bill and it follows that, if Clause 2 is to be part of the Bill, I should defend that Clause 3 should stand part of the Bill because it gives a right of appeal against being sent to a third country. They are important to the Bill. I hope that they will remain part of it and therefore I oppose the amendment.
§ Earl Russell
My Lords, I hold the judgment in the case of Bostam. I can only say, without detaining the House for a very long time—which I do not wish to do—that I do not agree with the noble Baroness's reading of it.
In the case of Iqbal I will grant the noble Baroness that he is still in France. He, like others before him, has been extremely fortunate in his lawyer. His lawyer in fact tried to obtain a hearing for him. He was denied an application form for a hearing on the ground that Iqbal had no valid address in Paris, which was a prerequisite for obtaining forms. He had to get through a good many more obstructions of that sort before obtaining a hearing for Mr. Iqbal.
There is therefore a real difficulty, and the fact that Mr. Iqbal has been fortunate enough to overcome it and has a lawyer with enough vitality to obtain a hearing for his case in this country, makes him unusual rather than the practice of third country return to France safe.
I really cannot think that the noble Baroness has taken on board the risks inherent in third country procedure. I know it is late at night but one cannot bring back clause stand part on Third Reading. It has always been my view that if it is proper for the House to be in session, then in the last resort it must be proper for the House to divide. It is my last chance to do so and therefore I ask the opinion of the House.
§ 9.55 p.m.
§ Division called.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the Question is that Amendment No. 30 be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not content".
On Question, amendment negatived.
§ 10 p.m.
§ Clause 3 [Appeals against certificates under section 2]:
Baroness Blatch moved Amendment No. 31:
Page 4, line 2, after ("under") insert ("Part II of the 1971 Act (appeals: general) or").
§ On Question, amendment agreed to.551
Lord McIntosh of Haringey moved Amendment No. 32:
Page 4, line 4, leave out subsection (2) and insert—
("(2) A person who has been sent to a country or territory to which section 2(4) applies shall be entitled to be admitted temporarily into the United Kingdom in order to attend any hearing of an appeal brought by him under subsection (1)(a) of this section.").
The noble Lord said: My Lords, this is a probing amendment. I say that because I am very clear that, although the principle of the amendment is right, further qualifications will be necessary if the amendment is to work in practice. With this amendment we are trying to temper the wind to the shorn lamb to some extent. Under Clause 3, if somebody has been sent out of the country to a safe third country under the provisions of Clause 2, he has to conduct his appeal from that third country. All the evidence from the Council on Tribunals and everyone else is that the success and justice of an appeal is very much diminished if an appellant is unable to be present in person in order to conduct his appeal. The provisions of Amendment No. 32 are that,
A person who has been sent to a country … to which section 2(4) applies"—
that is the safe third country—
shall be entitled to be admitted temporarily into the United Kingdom in order to attend any hearing of an appeal".
§ The effect of that would be to reduce to some extent, but not totally, the possibility of the UK breaching its obligations under the United Nations convention on refugees. It will mean that applicants for asylum in the United Kingdom returned to a so called "safe" third country would have the theoretical ability to avail themselves of the protection of the United Kingdom if that third country in fact failed to admit them to its own asylum procedures. That is a matter that was considered in the last debate. We are attempting to protect the basic standards of due process in Clause 2 appeals.
§ The reason why I say that this is a probing amendment and not one that I can possibly submit to a vote in the House is that there are further qualifications which are necessary. First, a person granted leave to enter the United Kingdom for the purpose of attending an appeal brought under this subsection should not be entitled in turn to appeal against a refusal to vary that leave. Secondly, a person granted leave to enter the United Kingdom for the purpose should not be entitled to appeal against a subsequent decision of the Secretary of State to make a deportation order against him. Thirdly, a person granted leave to enter the United Kingdom for this purpose should not be entitled to appeal against the decision of the Secretary of State to set directions for his removal subsequent to the determination of that appeal. I am recognising that this amendment is technically defective in that a number of potential subsequent conditions in which further appeal would be necessary would have to be denied if the amendment were to work satisfactorily.
§ I see that the noble Baroness, Lady O'Cathain, is with us. I do not know whether she has been advised on this issue, but there is a possible risk that the transport sources open to asylum seekers may be loth to risk incurring liability under the Immigration (Carriers' 552 Liability) Act 1987. I think that there would have to be a discretionary waiver to deal with the problem, stating that the passenger was arriving in the United Kingdom for the purpose of pursuing an appeal under Clause 3 of the Asylum and Immigration Act. Carriers could be notified of that waiver of liability by a standard information clause in writing, annexed to the notice of appeal carried by the passenger. I do not know whether the noble Baroness has been advised on this matter, but I am looking at the potential objections to my amendment, which I am moving because I want the Government to recognise the fundamental justice of having an appellant present in person at such an appeal.
I say that with some confidence because the Glidewell Report's final recommendations dealt with that. Recommendation X on page 20 states:
At the least, if this clause is enacted, it should be amended to state that the appellant should have the right to return to the UK to be present at the appeal hearing and give evidence. This would help to ensure that the case was properly considered, although we take on board evidence which suggested that the individual might well have 'disappeared' by the time of the hearing".
§ The Glidewell Commission considered the matter in considerable detail and concluded that the right which is demanded in this amendment should be granted to appellants who have been sent to a third country under the provisions of Clause 2.
§ I repeat that we do not expect the amendment in its present form to be incorporated into the Bill, but this is an issue of great concern. It was raised in the Glidewell Report and deserves careful consideration by the Government. I beg to move.
§ Baroness Blatch
My Lords, Amendment No. 32 would allow an asylum seeker whom we had removed to a third country to return to the United Kingdom to pursue his appeal. The noble Lord may say that it is not his intention to table wrecking amendments—he has said that he will not press the amendment—but that is the effect of the amendment. If we remove an asylum applicant to a third country, but then allow him to return to the United Kingdom, the benefits of making a quick removal will have been lost completely. The question of whether the third country would take the applicant back would arise all over again. If this amendment was accepted, there would be no point in removing the suspensive effect of third country appeals, and the benefits of Clauses 2 and 3 would be lost. That may well be the intention.
Nor is the amendment necessary. The arrangements for legal advice and representation from abroad are perfectly satisfactory. Asylum applicants who are removed on third country grounds will be provided with forms which will give a full explanation, in a language they understand, of the reasons why they have been refused and how they should go about pursuing their appeal.
The Immigration Advisory Service and Refugee Legal Centre are funded to provide representation at immigration and asylum appeals under Section 23 of the Immigration Act 1971. The Immigration Advisory Service is already accustomed to representing people pursuing immigration appeals from abroad. Section 23 553 funding will likewise be available for representing asylum seekers appealing from abroad against removal to a third country.
In addition, advice under the green form legal aid scheme will be available, subject to normal financial eligibility requirements. The scheme is available for advice on any matter of English law, regardless of whether the person seeking advice is in the country or outside it. There is no problem about the client having to sign a form in the presence of the solicitor whose advice is sought. Solicitors who have been franchised by the Legal Aid Board have delegated authority to accept postal applications under the green form scheme (including faxed applications). There is also provision for a friend or relative of the client to attend the solicitor in order to apply for legal advice on the client's behalf.
A third country appeal is significantly different from a substantive asylum appeal. The issue in a third country case is not whether the appellant's account of any ill-treatment he has suffered in his country of origin and of his reasons for claiming to fear persecution is credible. The issue is whether the third country is safe, and the certification conditions contained in Clause 2 are satisfied.
The case usually revolves around a discussion about the country's asylum procedures and its legal system. The amendment would underline the objective of Clauses 2 and 3 which is to enable us to make quick removals to third countries while those countries are still prepared to take back the asylum applicant. If the applicant were subsequently allowed to come back to the United Kingdom a second time it is highly unlikely that the third country would take him back again. The amendment is unacceptable. Although it is not being pressed tonight, I will continue to oppose it if it is returned to at the next stage of the Bill.
§ Lord McIntosh of Haringey
My Lords, the Minister can hardly describe as a wrecking amendment something which has been introduced as a probing amendment. We were seeking information and clarification from the Government. Although we do not like the clarification that we have been given, certainly we have been given clarification. It is now apparent that under Clauses 2 and 3 the appeal is no longer a substantive appeal on the immigration application. The Minister now tells us that it is an appeal on the issue of whether or not the third country is safe. The whole thrust of Clauses 2 and 3, which provide for the removal of asylum claimants to safe third countries, is very different from that which had been quite widely supposed.
§ Baroness Blatch
My Lords, I am surprised that the noble Lord did not realise that that was what Clause 3 was about. The noble Lord has been reading Clause 3 since the outset of the debates on this Bill. Clause 3 has only ever been concerned with appeals against the measures in Clause 2.
§ Lord McIntosh of Haringey
My Lords, it is true that Clause 3 is very limited in the scope of the appeal. But Clause 3 must be read together with Clause 2. We 554 have to consider the apparent fact that Clause 2 is not intended to be a way of speeding up procedures or providing a more economical way of dealing with asylum applications. It is a way of sweeping asylum applications under the carpet in such a way that they can never be brought out again. I read Clause 3 exactly as the Minister said. But I take this opportunity—and I move this amendment deliberately—to bring into the open the severe limitations on the appeal procedure which is provided for in Clause 3. There is no confusion in our minds or any difference of understanding. We want to ensure that Hansard recognises the position.
The Minister went on to say that there were a number of ways in which an appellant from a third country could be represented and take part vicariously in the appeal procedure. She spoke about friends and relatives in this country and the availability of legal advice. But the experience of all appeal tribunals of this kind, not just in the immigration and asylum field but throughout the scope of tribunal procedure, is that where the appellant is not able to take personal part in the proceedings he is likely to fare worse than if he is able to be present. Even if the appeal under Clause 3 is as limited as it appears to be, it still ought to be a fair appeal and one in which the appellant has a reasonable chance of success. An appeal in absence does not give a reasonable chance of success.
I do not regret moving this amendment, despite the necessary qualifications which would have to be made if it were to be agreed. It is right to point out that Clause 3 provides very much less protection against the activities provided for under that clause than might otherwise be supposed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 10.15 p.m.
§ Lord Dubs moved Amendment No. 33:
§ Page 4, line 23, at end insert—
§ ("( ) For the avoidance of doubt, directions under section 19(3) of the 1971 Act may include directions—
- (a) that an entry clearance be issued notwithstanding that any requirement of the immigration rules has not been met;
- (b) that a laissez passer or other travel document be issued;
- (c) that the return to the United Kingdom of the appellant and any family members removed as his dependants be arranged and that the Secretary of State bear the cost thereof if there is evidence that the appellant would be unable to pay the cost himself;
- (d) that no further certificate under section 2 be issued in respect of the appellant or any dependant of his; and
- (e) that the Secretary of State uses his best endeavours to locate an asylum seeker who has won an appeal under this section in order that he be invited to return to the United Kingdom.").
§ The noble Lord said: My Lords, perhaps I may emphasise that this is a probing amendment. As I recall, it was not debated in Committee. In that sense, we are seeking the Minister's response to issues which were not discussed in this House at earlier stages of the Bill.
§ I appreciate that because it is an amendment to Clause 3 it may be narrower in its relevance than it would be if it applied to all appeals. To that extent I appreciate that I am after wider comments from the 555 Minister than those merely in relation to Clause 3. The point at issue is that when an adjudicator allows an appeal, he can normally give directions to give effect to that decision. That, I believe, stems from the 1971 Act. Those directions can be given only to the Secretary of State or his officials.
§ What is not clear, and where I am seeking clarification from the Minister, is as to what powers the adjudicator has where an appeal against a decision to remove succeeds after the removal of the individual; that is to say, what powers does an adjudicator have to recommend that help be given to the successful appellant to be able to return to this country, the appellant having been removed before the result of the appeal? It may be a matter of documents or entry clearance, but it may also be a matter of compensating the appellant so that the appellant can make the journey back to this country in circumstances where he would not normally be able to afford to do so.
§ There is a range of circumstances where the adjudicator might be able to give directions so that action is taken to help the appellant, as indicated in the points in the amendment. I repeat, it is a probing amendment to see what is the Government's response, and whether the thrust of the amendment is clear. I beg to move.
§ Baroness Williams of Crosby
My Lords, I commend the efforts of the noble Lords, Lord McIntosh and Lord Dubs, to find out just what is the meaning of the right of appeal under Clause 3. With Amendment No. 33 what they are clearly trying to do is to establish whether, if someone has a successful appeal from the third country to which they have been sent, the consequences of that appeal will be recognised by the UK.
We have already discovered that the likelihood of people being able to pursue an appeal from another country will be difficult, because they will not have the kind of help that the Minister described a few moments ago in her response to the noble Lord, Lord McIntosh. We now have what we might call the minimal position of what happens if the appeal is successful and whether it can be made real. It would be helpful to know whether, if an appeal is successful, the necessary material and other steps can be taken to ensure that that appeal becomes not just a legal victory but a real victory in terms of the person concerned being permitted to return to this country, and to live here according to the terms of the adjudicator's decision.
§ Baroness Blatch
My Lords, Amendment No. 33 purports to clarify the directions an adjudicator could issue in the event of a successful appeal, but it strays into territory which is not properly the subject of an adjudicator's directions. The noble Lord, Lord Dubs, said that he would like to know whether the adjudicator has powers to recommend. I can give him an absolute assurance that he does have powers to recommend, but what he does not have are powers to direct, which of course is the subject of the amendment.
556 Section 19 of the Immigration Act 1971 provides that if an adjudicator allows an appeal, he:shall give such directions for giving effect to the determination as he thinks requisite, and may also make recommendations with respect to any other action which [he] considers should be taken in the case.For the purposes of this debate the distinction between directions and recommendations is important. The Secretary of State is required to comply with directions, but he is not bound by an adjudicator's recommendations. Directions should be confined to measures which are necessary to give effect to the decision to allow the appeal. Any steps which the adjudicator thinks are desirable in a particular case, but which are not essential to give effect to his decision, are properly dealt with by means of a recommendation.
Amendment No. 33 seeks to blur this distinction. It would give an adjudicator the power to make directions which go well beyond what is required to give effect to the decision to allow an appeal. The Government cannot therefore accept the amendment. We are, however, partly sympathetic to the thinking behind it. I shall run through each of the matters dealt with by Amendment No. 33 in order.
I appreciate the intention behind limb (a) of the amendment. If the successful appellant was a national of a country for which a visa requirement was in force, a carrier would be liable to a penalty under carriers' liability legislation if it brought the applicant to the United Kingdom without some form of waiver. We have made it absolutely clear that successful appellants will be allowed to return and if necessary a visa waiver would be issued. The adjudicator could require this under Section 19. In practice, it will often be possible for the applicant to return to the United Kingdom without such assistance; for example, if he is a visa national. I am sure that that will come as a relief to my noble friend, who is no longer in his seat.
However, it would not be appropriate to issue an entry clearance to a successful appellant, as the amendment envisages. The holder of an entry clearance would normally be granted leave to enter, but a successful appellant who returned to the United Kingdom would not be granted leave to enter unless he qualified under the immigration rules. We would expect him to lodge a fresh asylum claim at the port of entry when he arrived there. He would normally then be granted temporary admission while his asylum claim was considered.
The second limb of the amendment is concerned with the issue of travel documents to a successful appellant. As I have just indicated, we will issue a travel document where necessary and the adjudicator will have powers to issue a direction to this effect.
Paragraph (c) of the amendment provides for a direction requiring the Secretary of State to arrange the successful appellant's passage back to the United Kingdom and to bear the costs. In the great majority of cases, it should be possible for the individual concerned to make his own way back to the United Kingdom. We accept that there might be wholly exceptional cases where an adjudicator believed that a successful appellant had no funds and no means of 557 returning to the United Kingdom. If so, the adjudicator could direct the Secretary of State under Section 19 of the 1971 Act to make the necessary arrangements, including the financial arrangements, which were required to give full effect to his decision to allow the appeal. No further legislative provision is required to clarify the point.
I cannot, however, accept that it would ever be appropriate for an adjudicator to direct that no further certificate under Section 2 should be issued in respect of a particular appellant. The adjudicator would not be able to give such a direction under the Bill as drafted and we do not favour an amendment to enable him to do so. The fact that an adjudicator has found a particular country to be unsafe for the applicant has no bearing on whether there is a different safe third country to which that applicant could be sent.
For example, an adjudicator might find that Italy was not safe for a particular applicant. The appellant would be allowed to return to the United Kingdom. This would give full effect to the adjudicator's determination. It is then for the Secretary of State to decide how to deal with the applicant's asylum claim. And it might then become apparent that the applicant was clearly admissible in the Netherlands, for instance, because he had a valid residence permit. In these circumstances, it might well be appropriate to issue a further certificate under Section 2.
The final limb of the amendment would state that an adjudicator could properly direct the Secretary of State to use his best endeavours to find the successful appellant and invite him to return to the United Kingdom. I cannot accept that such steps would be either necessary or practicable in order to give effect to an allowed appeal. The onus must be on the successful appellant to keep in touch with the authorities in this country. It would be extraordinary and unprecedented to impose such an open-ended and unacceptable obligation on the Secretary of State. It has always been the position in immigration cases that the onus is on the successful applicant to take advantage of the decision or determination in his favour.
I know that the noble Lord is not intending to press this matter and that it was for the purpose of clarification. I hope that my response has been helpful in that respect.
§ Lord Avebury
My Lords, the Minister said that a person who required an entry certificate would not be granted one but would be expected to apply again at the port of entry and put in a new application for asylum. How does that person get on an aircraft or other means of transport because, by definition, he has a refusal stamp in his passport and when he goes to book a ticket, the airline or other carrier will obviously decline to take him as a passenger fearing that if it does so it will be surcharged on refusal? Will the Minister explain how the successful applicant who is in Italy will be able to get on an Alitalia flight in order to come to London without an entry certificate?
§ Baroness Blatch
My Lords, I repeat that part of what I said in my response to the noble Lord, who 558 clearly missed it. Paragraph (c) of the amendment provides for a direction requiring the Secretary of State to arrange the successful applicant's passage back to the United Kingdom and to bear the costs. In the great majority of cases, it should be possible for the individual concerned to make his own way back to the United Kingdom. But we accept that there may be wholly exceptional circumstances where the adjudicator believed that a successful appellant had no funds and no means by which to return to the United Kingdom. If so, the adjudicator could direct the Secretary of State, under Section 19 of the 1971 Act, to make the necessary arrangements, including the financial arrangements required to give full effect to the decision to allow the appeal. No further legislative provision is required to clarify the point.
But, beyond that, what happens to the person once he is in this country as regards rights of entry is a matter for the Secretary of State and not a matter for the adjudicator.
§ Lord Avebury
My Lords, I am sorry but the Minister did not understand what I was asking. I am asking about the remarks which she made when she said that an entry clearance could not be a subject of direction but that the successful appellant had to come back to this country and lodge a fresh application for asylum at the port of entry. How would that person be able to book a ticket with any of the carriers when the carriers would know that that person had been refused leave to enter the United Kingdom on a previous occasion and would therefore be in fear of being surcharged if that person was again refused leave to enter on the second arrival at the port of entry?
I take the example which the Minister gave that the person was sent to Italy and the adjudicator found that Italy was not a safe place for that person. Therefore, he seeks to get on a plane in Rome to come back to London. He has the money to pay for the ticket—it is not a question of money—but, when he goes into the Alitalia ticket office and the staff there look at the passport and see the stamp of refusal, he will not be issued with a ticket because of the fear of being surcharged. How does that person get back to Heathrow or wherever he came from in the first place in order to lodge the fresh application for asylum?
§ Baroness Blatch
My Lords, with the leave of the House, I am sorry if I misunderstood the point made by the noble Lord. In that case, he would need a visa waiver and we would issue one.
§ Lord Dubs
My Lords, that is extremely helpful not only in the original speech which the Minister made but also the further point of clarification which she made in reply to the noble Lord, Lord Avebury.
I thank the Minster for clarifying an area in which there was doubt and for doing so in such an extremely helpful way. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 34 not moved.]559
§ Lord McIntosh of Haringey moved Amendment No. 35:
§ After Clause 3, insert the following new clause—
§ ADJUDICATOR'S RECOMMENDATION
§ (".—(1) In Schedule 2 to the 1993 Act, after paragraph 3 there shall be inserted the following paragraphs—
§ "3A. Where a special adjudicator confirms a refusal, variation, decision or directions against which a person has appealed on the grounds mentioned in subsections (1) to (4) of section 8 of this Act, he shall determine forthwith whether there are other circumstances which, in his opinion, justify allowing the person to enter or not requiring the person to leave the United Kingdom.
§ 3B. If a special adjudicator determines that there are such circumstances, he shall direct that the Secretary of State shall grant leave for the person to enter the United Kingdom if he has not already been granted such leave and to remain in the United Kingdom for as long as those circumstances shall continue to exist."
§ (2) In paragraph 4(1) of Schedule 2 to the 1993 Act, after the words "section 8 of this Act", there shall be inserted the words "and paragraph 3A of this Schedule".").
§ The noble Lord said: My Lords, in a sense, Amendment No. 35 could have been taken with Amendment No. 33, because it refers to the same kind of issue, but this amendment must come after Clause 3 rather than as part of it because it refers to the role of the special adjudicator and what happens when he confirms a refusal, variation, decision or directions against which a person has appealed.
§ The position at the moment is that the adjudicator can allow an appeal only, as I understand it, if he finds that the appellant is a refugee as defined by the 1951 convention. If the adjudicator finds that the appellant qualifies to stay here under any other international treaty, such as the European Convention on Human Rights, he cannot allow an appeal because that is not within the scope of his terms of reference, even if he believes that the appellant would be likely to suffer if removed for anything other than a convention reason or if he believes that the appellant should be allowed to remain here for other compassionate reasons, such as ill health. In other words, the exceptional leave to remain provision, which, after all, accounts for the majority of people who actually stay in this country after going through the asylum claim procedure, is outside the scope of the special adjudicator. We are suggesting that the special adjudicator should be given power to direct that the Secretary of State should grant leave for the person to enter the United Kingdom if he has not already been granted such leave, and to remain here so long as the special circumstances continue to exist.
§ The Government will no doubt tell us that it is rare for the Home Office to reject the view of the special adjudicator, but I understand that there are a significant number of cases in which the Home Office does reject the view of the special adjudicator. That can and does lead to judicial review. So what we are saying is that it is logical and rational for the special adjudicator to have the full range of options, which includes a direction that leave be granted. We recognise that if the special adjudicator does so the Home Office can appeal against that judgment, but we believe it is necessary, particularly in view of the prospect of an increasing 560 number of accelerated cases, that these additional powers for the special adjudicator should be granted. I beg to move.
§ Baroness Blatch
My Lords, this amendment would represent a fundamental and unacceptable departure from the existing role of the special adjudicator. The adjudicator's role is to oversee the correct application of immigration and asylum law, as set out in primary legislation and the immigration rules. In other words, the adjudicator is there to apply the rules fairly. Applicants appeal to the adjudicator on the grounds that their rights under the legislation have not been complied with. The exercise of discretion in favour of applicants who do not meet the statutory immigration or asylum requirements is the proper preserve of the Secretary of State. This is because discretion has to be exercised in the context of the Secretary of State's responsibility for maintaining the effectiveness and integrity of immigration control. Individual compassionate factors always have to be weighed against that wider responsibility. Adjudicators have no such responsibility, and that is why they have the power to issue binding directions only in cases where an appeal is allowed and only for the purpose of ensuring that a determination based on the rules is given effect.
The amendment is in any case unnecessary. It overlooks the fact that the question of whether exceptional leave should be granted is already built into the initial consideration process. Anyone refused asylum has had the case for exceptional leave fully examined. Moreover, the adjudicator can of course, if he dismisses the appeal, make a recommendation, including the recommendation of exceptional leave. I can assure the House that all such recommendations are carefully considered. Furthermore, it is our current policy that only officials at senior executive officer level or above are normally authorised to decide not to comply with recommendations in asylum cases.
If the adjudicator's recommendation arises from exceptional compassionate circumstances which have not previously been considered and which would genuinely merit the exercise of discretion outside the immigration rules, then we would act upon a recommendation. We believe that that is a perfectly reasonable policy. Therefore, I again urge noble Lords not to press the amendment.
§ Lord McIntosh of Haringey
My Lords, the last part of the Minister's reply was especially interesting. Of course, it is common ground between us that the adjudicator can make recommendations and it is valuable to have on the record the assurance that, if there is any question of the recommendations not being accepted, it will be a senior immigration officer who will be responsible for such a decision. The Minister is right to say that the integrity of our immigration procedures is the responsibility of the Secretary of State, but our purpose in moving the amendment was to clarify the concerns about the powers of the special adjudicators which, I have to say, have been expressed not only in this amendment but also by adjudicators and special adjudicators in evidence to the Glidewell Panel.
561 It have been a valuable to have elicited that answer. I am not claiming that we have elicited anything new, but the Minister has been very clear and helpful in her response. In the circumstances, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Avebury moved Amendment No. 36:
§ Before Clause 4, insert the following new clause—
§ EVIDENCE OBTAINED USING X-RAYS
§ (". In any proceedings under the 1971 Act, the Immigration Act 1988, the 1993 Act or this Act, it shall not be admissible for evidence to be introduced as to a person's age which is derived from the use of X-Ray technology.").
§ The noble Lord said: My Lords, the amendment arises out of the discussion that took place on 30th April concerning the arrival in this country of unaccompanied children, the problem of how the ages of those children should be determined and the remarks that were made then by the right reverend Prelate the Bishop of Ripon concerning the use of x-rays for that purpose. I ventured at that time to point out that we had long ago discontinued the practice of using x-rays for age determination in immigration control. Since then I sent a copy of a report which my office published in 1981 to the right reverend Prelate and also to the Minister.
§ The Minister was kind enough to reply in detail saying that the Home Office and the Foreign Office had long discontinued the use of these techniques. However, they continue in private practice, as I confirmed by discussing the matter with the noble Lord, Lord Winston, who is a medical practitioner. When we produced that study in 1981 the purpose was to remedy the defects in the Yellowlees Report on the medical examination of immigrants, which had been published by the Home Office in 1980, in so far as that report referred to the risks inherent in the use of radiological examinations of children and the errors arising from varies techniques of age estimation based on x-rays.
Because there was no limit below which exposure to x-rays gives rise to a zero risk, we found that the use of x-rays, especially on children, is avoided wherever possible. According to one authority:
We … have a large amount of data—much of it human—showing a statistically significant increase in a number of types of malignancies as a consequence of exposure to low doses of ionising radiation".
As a result of much evidence of that kind, the BMA passed a resolution at its annual meeting in 1979:
That this meeting considers that medical examinations to determine virginity, and radiological examinations, carried out solely for administrative and political purposes, are unethical and instructs Council (a) to convey this view to the General Medical Council and (b) to make the strongest possible representation to the Government to ban these practices".
In addition, the World Health Organisation has condemned the use of x-rays for administrative uses because it exposes people to unnecessary radiation risks. The authors of the most advanced system for assessing skeletal maturity, Tanner and Whitehouse, had not updated their control group since the 1950s, because, in their words,
current British regulations forbid the x-raying of hands of healthy children … Our norms therefore remain those of  years ago".
§ The norms of Tanner-Whitehouse were based on a 1950s sample of British children of slightly under-average family income. Therefore, the use of the skeletal age of those children to determine the chronological age of applicants from third world countries was subject to two major sources of error. First, since the 1950s general standards of nutrition and skeletal maturity will have changed drastically. Secondly, there would be enormous difference between the rates of skeletal maturity in Britain and those various third world countries. From many studies it was concluded that the error inherent in the use of those skeletal techniques for age determination was something like plus or minus two years.
§ Not only were those techniques dangerous to the children, they were also grossly inaccurate and useless for the purposes for which they were intended. For that reason the Home Office and the Foreign Office discontinued the practice.
§ I was disconcerted to find from the discussion on 30th April that the practice was still continuing in the private sector. I believe that we should take the opportunity that the Bill presents to insert a provision which prevents the use of evidence based on X-rays in any procedures on immigration controls from the 1971 Act onwards. By doing so, we give effect to the BMA's recommendation, made as long ago as 1979. I beg to move.
§ Earl Russell
My Lords, I congratulate my noble friend on the persistence with which he has pursued this issue. Each time I have heard him, I have found his case more persuasive. He has today presented a very strong case indeed, especially in the light of the opinions of the BMA.
What is unusual, and very welcome, is that we are not hearing any confrontation between the two sides of the House. We are hearing suggestions about what might be done to control unwise actions in private practice. Indeed, I understand that there is no conflict between my noble friend and the Home Office on this point.
This issue is worth thinking about especially in the light of what my noble friend said about the margin of error. The Minister may not consider primary legislation the ideal medium, but if the noble Baroness has any suggestions for constructive action they will be very welcome. It will be very nice indeed if we can reach agreement on something.
§ Lord Renton
My Lords, I hope that it is relevant to bear in mind that the people who try to deceive by mis-stating their age are not children. They are bound to be adults who are not very old and are trying to claim special treatment because they say they are children. It is difficult for the immigration officers, medical people, 563 or anyone to say what those people's ages really are. If the X-ray can decide the matter, we should keep an open mind on the issue.
§ Baroness Blatch
My Lords, as I said during the earlier stages of the Bill, where there is a dispute about whether an asylum claimant is under 18 years of age, the burden of proof must lie with the applicant.
One option for the applicant is to seek an independent age assessment by medical experts. If such a report is obtained, it will be given full and careful consideration. The Home Office does not normally commission such reports and I can confirm to the House that we do not employ X-rays for age assessment. Entry clearance officers at British diplomatic posts abroad do not employ this technique either. But it is not for the Home Office to say what methods should or should not be employed by an applicant's doctor.
On the methods used, my noble friend is right. It must be a matter for the applicant and his legal representatives to discuss with their chosen medical adviser. Most importantly, it is for the doctor involved to adhere to current best practice and to abide by the latest guidelines and instructions. If X-rays are being used inappropriately, that is a problem which needs to be addressed in a wider context rather than solely in relation to immigration.
I hope my assurance that the Home Office does not employ X-rays for age assessment will reassure the noble Lord, Lord Avebury, and the noble Earl, Lord Russell. However, I do not think it is appropriate to address their concerns in this way in this Bill.
I have listened carefully—not just tonight but also on other occasions—to the views expressed about the use of X-rays. I understand the concerns which have been raised. However, I am not persuaded that this Bill is the appropriate vehicle for dealing with those concerns. However, I would be happy to consult with my honourable friend John Horam, the Parliamentary Under-Secretary of State for Health, as to whether further guidance is required.
§ 10.45 p.m.
§ Lord Avebury
My Lords, I am much obliged to the Minister for that helpful reply. I look forward to consulting with her about the discussion she will have with Mr. Horam. If there is a degree of risk—that is common ground between all the medical authorities and the World Health Organisation—there is a governmental responsibility to discourage the use of those techniques, particularly where that relates to statutory procedures of this kind. I agree with the noble Baroness that probably this is not the right place for the insertion of provisions which deal with health risks, and that we ought to find another opportunity for dealing with that matter in a Bill which is concerned with health. We may also, in the meanwhile, as a result of these discussions, have the opportunity of further dealings with the ethical committee of the BMA which is seized of the matter and is looking over the records of what was said and done in 1981. That committee may be able to give advice to the profession which will yield the result we 564 all want to see. I am extremely grateful to the Minister for her comments. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Obtaining leave by deception]:
§ [Amendments Nos. 37 to 41 not moved.]
§ Clause 5 [Assisting asylum claimants, and persons seeking to obtain leave by deception]:
Lord McIntosh of Haringey moved Amendment No. 42:
Page 5, line 5, leave out ("or has reasonable cause for believing").
§ The noble Lord said: My Lords, in moving Amendment No. 42 I wish to speak also to Amendments Nos. 44 and 45 which are all concerned with the conditions under which it is possible and desirable to control racketeering in immigration advice. I say immediately that we are strongly in support of the objectives of Clause 5 of the Bill. We believe that it is desirable and indeed essential that there should he controls over who gives advice. It is particularly desirable that there should not be a body of people who encourage claimants to seek to obtain leave to remain in this country by deception. In saying that, I am not for a moment admitting that I am satisfied with the definition of deception. However, there are other amendments which cover that point.
In these three amendments we are in particular concerned with the professional status of solicitors because the clause as drafted requires solicitors to second guess their clients and forces them to make judgments as to whether the story the client tells is true. That is the implication of the phrase,
has reasonable cause for believing",
which appears at three points in Clause 5(1). To have "reasonable cause for believing" implies that the person who has the reasonable cause has obtained that reasonable cause by a course of inquiry.
I am not in any way an expert on the ethical rules which govern solicitors. However, the Law Society advises me that,
Solicitors are under a duty not to act for a client where deception is involved, but are not required to cross-examine clients about the truth of their story".
The Law Society says that,
The effect of the clause as drafted will be to oblige solicitors to establish the truth of a client's story, rather than to act as their representative. Solicitors will in effect be doing the job of Immigration Officers in determining the truth of an applicant's claim".
It goes on to say that,
The burden of proof in the clause, which specifies that advisers must have 'reasonable cause for believing' a client not to have used deception is too heavy. It would be impossible in many cases to disprove that the adviser had reasonable cause for believing an application included deception".
I have taken the unusual step of reading directly from the advice given to me, and I believe to other noble Lords, by the Law Society because this is an area where the professional rules of solicitors are rather arcane. However, this point deserves the serious consideration
of government. The Law Society, and this House, deserve a considered reply to these amendments. I beg to move.
§ Earl Russell
My Lords, I was rather surprised to hear the noble Lord say that he was in sympathy with the general objectives of Clause 5. Is the noble Lord telling the House that he believes the objectives of this clause are confined to dealing with racketeers?
§ Baroness Blatch
My Lords, I shall leave the noble Lord to answer that question for himself.
Section 25(1) of the Immigration Act 1971 contains, and always has contained, an offence of facilitating the entry of an illegal entrant. The offence is committed where a person facilitates the entry of someone,whom he knows or has reasonable cause for believing to be an illegal entrant".The words "knows or has reasonable cause for believing" have not caused any problems since the 1971 Act was passed, and have been incorporated into the two new offences which would be created by Clause 5(1) of this Bill.
These amendments would delete "reasonable cause for believing" from the three offences, the existing illegal entry offence and the two new offences. I understand, from discussions we had earlier in Committee, that this change may have been prompted by a desire to protect those who have a legitimate interest in providing advice and assistance in immigration cases, particularly lawyers. It was felt that it would be difficult for any adviser to disprove that he or she had reasonable cause for believing that an application with which they were involved included deception.
I would make two points. The first seems to be fundamental. It would be necessary to prove that an adviser knew or had reasonable cause for believing that deception was involved in order to secure a conviction. That is rather a different matter to the adviser disproving knowledge or belief of deception. I am afraid the noble Lord got that point wrong. Evidence would have to be assembled to prove the case.
My second point concerns the wording of the offences if the amendments were accepted. The standard of proof required to secure a conviction would be absolute. It would have to be shown that the adviser knew. This provides the easy get-out clause for precisely the people against whom the new measures are aimed. They could plead ignorance and stand a very good chance of being acquitted.
In conclusion, I have not been persuaded that the phrase "or has reasonable cause for believing" should be removed from the offences, because to do so would be to reduce the chances of convicting immigration racketeers, an aim which has received considerable support on all sides of the House.
§ Lord McIntosh of Haringey
Perhaps I may deal first with the intervention of the noble Earl, Lord Russell. I accept that Clause 5 contains matters other than dealing with racketeers. But those other 566 matters are the subject of amendments that we tabled at Committee stage and again on Report since many were not debated in Committee. We are, as always, concerned with the detail of the Bill, and concerned to see that the Bill expresses properly objectives which we can share.
There are occasions when Bills are wholly unacceptable, and when that happens we express blanket disapproval. However, the general objective of cleaning up the immigration advice business, so to speak, is one shared by all parts of the House and, however defective, that is the principal purpose of Clause 5.
I listened carefully to the Minister and accept that the burden of proof is that it has to be shown that the adviser knew about the deception rather than that he has to satisfy himself first. For that reason alone this is not an amendment I propose to press. I was particularly interested in what the Minister said towards the end of her reply; that is, that in determining the case there was a strict definition of "knows". I do not see that in Clause 5. I am not suggesting that the Minister should expand on it at the moment. I want to read carefully what she said and be sure that I understand its import. If that is the case, then it is possible that the anxieties of legitimate immigration practitioners—not only lawyers, but also those who work for charities and local organisations—are met in the wording of Clause 5. I am not satisfied that that is the case at the moment. I want to read what the Minister said and think about it before the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 43 to 45 not moved.]
§ Baroness Blatch moved Amendment No. 46:
§ Page 5, leave out lines 14 to 17 and insert ("which is done—
- (a) by a person otherwise than for gain, or in the course of his employment by a bona fide organisation whose purpose it is to assist refugees; or
- (b) in relation to a person who has been detained under paragraph 16 of Schedule 2 to this Act, or has been granted temporary admission under paragraph 21 of that Schedule;").
§ The noble Baroness said: My Lords, had we discussed Amendment No. 43 I would have told the House that there is a case for tightening up the protection in Clause 5(2) for advisers. That is what Amendment No. 46 involves.
§ Amendment No. 46 is in response to the concerns raised at a previous stage and I expected them to be raised again tonight. I should say at the outset that it has always been the intention that this offence should be firmly targeted at the activities of immigration racketeers. It has never been the intention that the introduction of the new offence should have an adverse effect on the provision of lawful and legitimate advice and assistance to those seeking asylum in the United Kingdom.
§ Lord McIntosh of Haringey
My Lords, before the Minister proceeds perhaps I may say that I am not responsible for Amendment No. 43. The anxieties expressed at Committee stage are expressed in Amendments Nos. 47 to 49, which we have not yet 567 moved. The Deputy Speaker has not yet advised the House that they would fall through pre-emption if Amendment No. 46 is agreed to. My understanding was that we would deal with those amendments—which express our concerns—at the same time as Amendment No. 46, if only for the pre-emption reason.
§ Baroness Williams of Crosby
My Lords, perhaps I may add that I did not move Amendment No. 43 because I understood that Amendment No. 46 had been tabled in part to deal with the issues that we raised at an earlier stage. I wanted to hear what the noble Baroness had to say and also save the time of the House.
§ Baroness Blatch
My Lords, I am simply saying that I am responding to concerns. Nothing I say on Amendment No. 46—I hope the House will accept that amendment—will preclude anything that noble Lords have to say on Amendments Nos. 47 to 49. I reserve my right to respond to those amendments after they have been spoken to by noble Lords.
The existing defences to the new offence set out in the Bill provide that it will not apply to activities done otherwise than for gain, or in the course of employment by a bona fide organisation whose purpose is to assist refugees. It has been recognised that these defences were incomplete in as much as they do not protect those people such as lawyers who have a legitimate and lawful interest in providing advice, assistance and representation to asylum seekers who have applied for asylum on arrival in the United Kingdom.
The amendment is the consequence of the recognition of the lacuna in the defences available to the new offence following consideration of the points previously raised about the scope of the offence. It provides that where a person has been detained under paragraph 16 of Schedule 2 to the 1971 Act or has been granted temporary admission under paragraph 21 of that schedule, assistance, advice or representation provided to that person will fall outside the scope of the new offence. This will mean that there will be no prospect of a prosecution for the new offence being considered where a lawyer provided his services to an asylum seeker who has been temporarily admitted pending the resolution of his port asylum application.
The acceptance of this amendment targets the new offence even more firmly at immigration racketeers, and clearly exempts those who have a legitimate interest in assisting asylum seekers who have arrived in the United Kingdom. I commend it to the House.
§ 11 p.m.
§ Lord Dubs
My Lords, I should like to speak to Amendments Nos. 47, 48 and 49. The amendments seek to improve the proposition put forward by the Minister, although technically they are amendments to the Bill unamended. Nevertheless, the points would still apply as amendments to the Bill as amended by the noble Baroness's Amendment No. 46.
I welcome what the Minister said. I think it helps us and Amendment No. 46 takes the process further forward. Amendment No. 47 seeks to replace the word 568 "gain" with "remuneration" because "remuneration" is, if anything, wider than "gain" and it would therefore cover organisations where people do not get any financial benefit directly. Amendment No. 48 seeks to leave out the words "employment by" and insert "work for". The adviser may not technically be "employed by" an organisation. He may "work for" an organisation in a voluntary capacity. Therefore, the amendment widens the concept and ensures that the scope of the clause would affect more people than the narrower definition in the Bill. With regard to Amendment No. 49, the Bill as now drafted uses the words "bona fide organisation". Amendment No. 49 would add,a partnership, company or other legal entity",and so on. That would allow for organisations which are not, strictly speaking, within the definition of "bona fide organisations". For the avoidance of doubt, these should be included.
I have some difficulty with a point that is not the direct subject of an amendment. I refer to the use of the word "refugee" in the original wording of Clause 5. Indeed, it is included in the amendment to which I am speaking and it is included in the Government's amendment. I hope that would not limit the help to asylum seekers. Elsewhere in the clause there is reference to "asylum seekers" but in this instance there is reference toa bona fide organisation whose purpose it is to assist refugees".I am not sure whether that is a mistake or whether it is deliberate. If it is deliberate, it means that there would be no help to asylum seekers. If it is a mistake, I hope we can find some way of rectifying it.
§ Earl Russell
I welcome the government amendment. I hope that the noble Baroness will forgive me if, nevertheless, I probe it a little. It is the duty of this side of the House to look gift horses in the mouth so I shall try to do so.
I am concerned about the meaning of the word "gain". The noble Baroness gave me an assurance at Committee stage which I much welcomed, that those who work for airlines who assist anyone intending to claim asylum would not be found guilty under this clause. Since then I have received advice from the Immigration Law Practitioners Association which, in noting the noble Baroness's assurance, nevertheless say that the courts may think otherwise. That is a guarded but strong pronouncement. It gives me a certain amount of anxiety. I hope I am in order in asking the noble Baroness to check that once again.
I heard and welcome, because I believe that they are crystal clear, especially in the light of the case of Pepper v. Hart, the assurances that she gave about solicitors. But what about the case raised by the Immigration Law Practitioners Association of a lawyer on holiday abroad who meets someone, for the sake of argument, in Sri Lanka who wishes to claim asylum. The solicitor gives him advice and then undertakes to take on his case in this country when he arrives. Is that person in jeopardy under the clause or not? It is a perfectly possible scenario and I am not clear how the clause would apply to it.
569 The same question might apply to a journalist who found himself assisting an asylum seeker. If the journalist were to produce copy out of it, as journalists usually do, he might risk coming within the scope of the clause. I am also concerned about the tightness of the words,whose purpose it is to assist refugees".Many Churches wish to assist refugees. It is not their primary purpose to do so, but many people in them regard it as one of their legitimate purposes. As the Church of Scotland warned the Home Office in May, some of them intend to continue to do so regardless of how this clause is interpreted. That presents the prospect of the sort of Church-state clash which I hope that this country will continue to try to avoid.
The Minister rightly said in the case of Mr. Tong that sanctuary has been repealed. Wearing my other hat, I am happy to confirm that. It is repealed by the Expiring Laws Continuance Act 1624. Nevertheless, the conviction that the Church must give help because it believes that it is its religious duty to do so is quite strong. The noble Lord, Lord McIntosh of Haringey, reminded the House when we were in Committee that although sanctuary has been abolished in common law it has not been abolished in canon law. Are we going to see the Church prosecuted under this clause in cases like that of the Church of Scotland or the Church which has temporarily sheltered Mr. Tong? If so, I believe that the Government are heading for the type of confrontation which both sides would be wise to avoid, if possible.
§ Baroness Williams of Crosby
Perhaps I may add to my noble friend's questions one or two additional ones. As the noble Baroness will know, the lawyers are very concerned indeed about constraints as to what extent they will be acting legally within the terms of this Bill. I shall pursue two of the issues that were raised in the discussion. The first concerns the kind of advice a lawyer can give in advance of somebody coming to this country. I have referred to it before in this debate because it is important, and that is the situation that will arise next year in Hong Kong. Many thousands of Hong Kong residents know people in this country and have close links with them. They are friends and colleagues and in some cases they have been in the same law firms and shared responsibility for legal matters in the same firms. It is very probable that a Hong Kong resident seeking asylum, for reasons which we have already discussed in this House and for other reasons, will approach his friend or colleague in order to ask for advice about the effects of this Bill, for example. Clearly, advice about how the Bill operates, about the necessity to make plain the minute one arrives that one is seeking asylum, and about the possibility of being returned to a third country, would be very valuable to someone seeking, or succeeding in getting, asylum in this country.
Therefore, I should like to ask the direct question whether such advice, not given for remuneration but nevertheless given in advance of the applicant coming to this country and announcing his intention of seeking asylum here, would or would not be caught by the terms 570 of Clause 5. If somebody approaches a lawyer whose firm is concerned with many other issues (of which the pursuit of advice to asylum seekers is only one) would that also fall foul of Clause 5? Those are extremely important points. It is important that lawyers know exactly what is and is not legal in offering advice to clients. It would be helpful if the Minister could say a little more about the points that we have raised so that we can answer those who have approached us on this matter.
§ Baroness Blatch
My Lords, Amendment No. 47 adds nothing to the understanding of Clause 5(2). "Remuneration" means wages or salary and "gain" not only includes those meanings but could also include payment in kind or property.
I cannot believe that it is intended that immigration racketeers should be able to take advantage of the defences available in Clause 5(2) to the new offence of facilitating the entry of any asylum claimant simply by taking payment in kind or property rather than in money. That, however, would be the likely outcome of adopting this amendment.
It appears that Amendment No. 48 is intended to widen yet further the defence set out in Clause 5(2) of the Bill, which would become Section 25(1A)(b) of the 1971 Act, to include the activities of voluntary workers as well as the employees of bona fide refugee organisations. That is unnecessary because voluntary workers who do not derive any gain from their activities are already covered by the defence which would become Section 25(1A)(a).
I have just outlined Amendment No. 46 which widens the defences to the new offence and which is the Government's response to earlier concerns about the scope of the offence. This now means that where asylum claimants are detained or given temporary admission under powers in Schedule 2 to the 1971 Act, those who provide them with advice, representation or other assistance have a defence from prosecution for the new facilitation offence.
The Government believe that the inclusion of this additional defence firmly targets the new offence at illegal racketeering activity and ensures asylum claimants are not prevented from receiving legitimate advice and assistance because those who would normally provide such assistance are afraid of prosecution. It is the Government's firm belief that, with the addition of the government amendment, anyone acting lawfully in providing advice or assistance to asylum claimants who have arrived in the United Kingdom, will be able to avail themselves of one of the defences set out in Clause 5(2), thus avoiding any prospect of prosecution.
Amendment No. 49 goes much further than would be provided for in Clause 5(2) as it would be amended by Amendment No. 46. It would allow any employee of an organisation which claimed that its purposes included,the provision of information, assistance or representation to refugeesto avail himself of the defence which would become Section 25(1A)(b) if the amendment is accepted. Clearly, it is a relatively simple matter for an 571 organisation to make such a claim when in fact it is merely a cover and the organisation is actually engaging in illegal, racketeering activity. It cannot be right that a defence to this new facilitation offence could be so readily available to people engaged in such activities.
The noble Earl referred to airline employees. I am fairly confident about what we said earlier, but I should like to consider further what I said originally and to confirm that that was correct. If I have to modify it, I shall do so.
We do not believe that the lawyer abroad would be in danger because his activities would be too remote from the entry of an asylum seeker here. The noble Earl also made reference to sanctuary in churches. Their actions are protected by this amendment because it applies to asylum seekers who have arrived and presented themselves to the authorities in the first instance. The noble Baroness Lady Williams referred to Hong Kong. The giving of advice to a person who is abroad is too remote from the entry of the asylum seeker to fall foul of the clause. I cannot read the note that I have before me. If the noble Baroness will forgive me, I shall write to her on the Hong Kong point.
§ 11.15 p.m.
§ Earl Russell
My Lords, I thank the noble Baroness warmly for her answers. I ask one other question that she has not yet answered. Would a church be counted as falling within the wordsa bona fide organisation whose purpose it is to assist refugees"?It is not the first way I would have thought of describing a church.
§ Baroness Blatch
My Lords, I am not sure that it is a church. What matters are the people in the church and the relationship between the activities of those people and the asylum seeker. If they are volunteers acting in a wholly lawful way they will not be caught by the measures in Clause 5. We know that some church activity is engaged in harbouring illegal entrants, which is a very different matter.
§ The Deputy Speaker (Lord Lyell)
My Lords, I apologise for not informing the House that if Amendment No. 46 is agreed to I cannot call Amendments Nos. 47 to 49 owing to a pre-emption. However, I understand that those three amendments have been grouped together.
On Question, Amendment No. 46 agreed to.
§ [Amendments Nos. 47 to 50 not moved.]
Earl Russell moved Amendment No.51:
Leave out Clause 5.
§ The noble Earl said: My Lords, the purport of this amendment is to leave out Clause 5. Even with the welcome assurances that the noble Baroness has just given, I am still under the impression that it is no more true that Clause 5 is directed against racketeers than that the Bill is directed against bogus asylum seekers. In 572 neither case is any attempt made to distinguish between the genuine and the bogus. The Bill purchases on both equally. It is a bit like the Tom Lehrer approach to shooting: one sits there looking cute and when anything moves one shoots.
§ Other issues arise from the clause, one of which is: what is an illegal entrant? To probe that a little further, the judgment of the Appellate Committee of this House in Naillie in 1993 was that a person who entered without a valid passport intending to claim asylum was not an illegal entrant. A Home Office briefing which was provided while this Bill was before another place suggested that one of the purposes of the Bill was to repeal the judgment in Naillie. I hope the noble Baroness can tell me that that is not so. Naillie rested on the distinction between people who land and are in the airport and those who attempt to gain entry. If the noble Baroness, Lady O'Cathain, were in her place she would confirm that that must be a valid distinction; otherwise, all transit passengers would require immigration papers, which would mean a vast amount of extra work.
§ It seemed to me that there was no good reason to object to the judgment of the House in the Naillie case, so I hope that we can be told that the Bill is not intended in any way to reverse it. The key point in that case was whether there was a third status between illegal entrants, legal entrants, and asylum seekers of the third status—whether they were made legal by the wish to claim asylum. That is a crucial question.
§ The next point that arises is the question of deception under Clause 5(1)(c). I shall not go through all the long argument I had with the Minister about the status of the in-country applicant—whether that involved deception or not. If she could not go through that in her sleep by now, I would be surprised. But I think she must understand that I believe that assisting someone to claim in-country remains a legal activity. It must concern me that anyone else professionally involved, who believes the same as I do and acts on their conviction, is running the risk of conviction under the Bill. That is something that is liable to breed martyrs, and that is something which tends to lead all governments into trouble. It concerns me rather deeply.
§ I am also deeply worried about Clause 5(1)(b) which makes it an offence to assist people who intend to claim asylum. Claiming asylum is a perfectly legal activity. There is no reference to deception in Clause 5(1)(b). It surprises me deeply to find attempting to assist people to do something legal made a crime in that way.
§ I have taken advice, and I find that the only other case where it is a crime to assist someone to do something legal is the suicide pact. I do not believe that the cases are parallel. This clause will do a great deal of mischief. I remain deeply opposed to it. I beg to move.
§ Lord Dubs
My Lords, I wonder whether I might briefly put two questions to the Minister about Clause 5. The first is one that I raised in relation to the previous amendment. It relates to the use of the word "refugees" in at least one instance in the clause when in other instances the words "asylum claimant" are used. I wonder whether the use of the word "refugees" is 573 significant and whether it is meant colloquially to cover asylum seekers or whether technically we might not be running into difficulties by talking about organisations that assist refugees and thereby excluding organisations that assist asylum seekers—those being the main people about whom we are talking, given that we are talking about claims for asylum.
I should have thought that technically it would be better if we did not use the word "refugee" in a loose way, and that therefore we should use the words "asylum seeker" rather than "refugees" here. I do not know whether the Minister has a view on that, but that is how it seems to me.
Perhaps I may put another question for clarification. Given that there are some safeguards contained in Clause 5, am I right in thinking that in so far as there is protection, that protection is only for those advising asylum seekers as port or "on entry" claimants and not those helping in-country claimants? I wonder whether there is a difference there, and that we are giving greater protection to one set of advisers and less to others, or whether I have misunderstood the way in which Clause 5 operates.
§ Baroness Blatch
My Lords, it is clear from correspondence with me, and his previous contributions to the debates on the Bill, that the noble Earl does not care for the idea that those who facilitate the entry of asylum seekers to the UK should be liable to prosecution. It is not a new idea. Section 25(1) of the 1971 Act has always made it an offence for any person to facilitate the entry of illegal entrants to the UK. The case law is clear. If a person assists another person to pass through the immigration control, using deception, or bypassing the control completely, that person is an illegal entrant, and—
§ Earl Russell
My Lords, is the Minister saying that an asylum seeker is an illegal entrant? If so, she is contradicting the judgment of this House in the Naillie case.
§ Baroness Blatch
My Lords, no, I did not say that. The noble Earl is putting quite the wrong interpretation on the matter. I am saying that helping someone to pass through by deception is illegal. I shall repeat what I said. Section 25(1) of the 1971 Act has always made it an offence for a person to facilitate the entry of illegal entrants to the United Kingdom. The case law is clear. If a person assists another person to pass through the immigration control using deception, or bypassing the control completely, that person is an illegal entrant, and the person who facilitates the entry is guilty of an offence under Section 25(1). This is irrespective of whether the facilitator acts for personal gain, or if the illegal entrant so assisted goes on to make a claim for asylum.
That is the current position. We have previously made clear that the new offence of facilitating the entry of an asylum seeker has been introduced to plug a hole in our existing immigration legislation which was exposed by legal judgments, and defences will be available to those who facilitate the entry of an asylum seeker. I will not 574 rehearse those defences again as they have already been covered in detail, but suffice it to say that this new offence does not criminalise the act of seeking asylum. Its aim is to combat those who make profit by facilitating the entry of asylum seekers, and in that aim it has been broadly welcomed by all sides during the consideration of the Bill. Doubts have been expressed about the scope of the offence and the defences to it, and the Government have responded to these doubts by bringing forward an amendment which tightens the focus of the offence.
Clearly, the noble Earl does not share the broad welcome which, as I have just said, has been given to the idea that the activities of facilitators should be stopped. Not only would he remove the offence of facilitating the entry of asylum seekers from the Bill, he would also remove the other new offence; facilitating the acquisition of leave to remain by deception as well. I find this difficult to understand. I can see no argument for protecting the activities of those who run bogus educational establishments and marriage rings, who obtain their profits by encouraging others to break and circumvent our immigration laws. No one should be in any doubt that the profits available to those engaging in such activity are considerable, and consequently this problem will not go away simply by ignoring it.
Those who encourage others to circumvent our immigration laws are not motivated by altruism. Their only concern is personal aggrandizement. I believe, and the Government believe, that we must have effective powers to deal with these people. This is what Clause 5 provides, and this is what this amendment would remove. I think it will be clear that I see no merit whatever in this amendment, and I strongly urge the House not to accept it.
The noble Lord, Lord Dubs, referred to refugees. There is no special significance in this. As he said, the colloquial reference is "intended", as most organisations are called refugee organisations. I do not believe that there is anything disparaging there. The noble Earl, Lord Russell, referred to an illegal entrant as defined in Schedule 1. It is our intention to reverse Naillie because that case held that a person could avoid prosecution for facilitation if that person assisted claimed asylum on arrival. As regards the noble Earl's other point, assisting to claim asylum in-country is legal. That is the purpose of my Amendment No. 46.
I hope that the clause will remain part of the Bill. It is important. It has wide support inside this House, in another place and in the country generally. The truth is that we believe that gaining at the expense of vulnerable people who are attempting to gain entry to this country is an important issue. Racketeers do exist and they profit from their evil activities. The offence is needed. The defences against this clause are set out in subsection (2). They provide the necessary safeguards for those acting lawfully. I argue that the clause should remain part of the Bill.
§ 11.30 p.m.
§ Earl Russell
My Lords, the noble Baroness is now putting words into my mouth. I apologised to her for 575 doing so and I hope that she will return the compliment. The noble Baroness is suggesting that I am trying to assist racketeers. I do no such thing. My objection to this clause is that it purchases equally on the innocent and the guilty. I am in favour of imprisoning burglars but I am not in favour of imprisoning the whole population because there happen to be some burglars among it. It is a very vital distinction.
I am in favour of measures against those who do evil if they are aimed at the people who do the evil. It is that test which this clause and this Bill have failed totally. The noble Baroness says that it has always been that way but 1971 is not always. However, I shall let that pass.
I shall not take the noble Baroness through the whole of the argument between us about what constitutes deception. She places some things under that heading which I do not. I do not intend to pursue that argument but I believe that she is doing a great deal of harm here.
I thank the noble Lord, Lord Dubs, for raising the question of the word "refugee". It is interesting because it is a word which may be interpreted in more than one way. I hope that the noble Lord, Lord Dubs, may be in part reassured by the way in which the word has been interpreted by the noble and learned Lord, Lord Nolan, judging in this House in the Khaboka case in 1993. He said that the term "refugee" must be taken as encompassing asylum seekers who subsequently have their refugee status accepted. He said that it is common sense and a natural reading also of the words of Article 31(1). The term refugee means what it says. It will include someone who is only subsequently established as being a refugee. I hope that that is clear to both sides of the House.
This argument will continue in the next Parliament, no matter who is in office. However, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Dubs moved Amendment No. 52:
§ After Clause 5, insert the following new clause—
§ REGISTRATION OF IMMIGRATION PRACTITIONERS
§ (" .—(1) It shall be an offence for a person who is not a qualified person within the meaning of this section to undertake for reward (whether by himself or through his servants or agents, or otherwise) the business of giving advice to, making representations on behalf of or acting as the representative of a person in respect of a matter to which subsection (2) of this section applies unless he is registered as an immigration law practitioner with the Immigration Practitioners Registration Authority ("the Authority") established under this section.
§ (2) This subsection applies to applications to—
- (a) an immigration officer, or
- (b) the Secretary of State for the Home Department, or
- (c) the Department for Education and Employment,
- (i) leave to enter or remain in the United Kingdom,
- (ii) asylum in the United Kingdom,
- (iii) revocation of a decision to deport that person from the United Kingdom,
- (iv) a residence permit or document, or
- (v) a work permit.
§ (3) For the purposes of this section, "qualified person" means a person who is—
- (a) a lawyer who is subject to the disciplinary jurisdiction of the Law Society or Bar Council in respect of any services which relate to a matter to which subsection (2) above applies;
- (b) an employee of an advisory organisation or registered charity approved by the Authority; or
- (c) an employee of a qualified person who is registered under this section.
§ (4) A person guilty of an offence under subsection (1) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
§ (5) Proceedings for an offence under subsection (1) above may be brought only by the Authority.
§ (6) It shall be the duty of the Lord Chancellor to appoint such person or persons as he considers to be fit and proper to constitute the Authority.
§ (7) It shall be the duty of the Lord Chancellor to make regulations to give effect to the establishment of the Authority under this section, which may include provision for—
- (a) fees payable for applications for registration;
- (b) requirements for registration, including requirements as to—
- (i) how the Authority is to be satisfied of the competence of a registered person to act as an immigration practitioner,
- (ii) the proper management of the business of a registered practitioner,
- (iii) the keeping of records,
- (iv) the supervision of employees, and
- (v) such other professional standards in the carrying on of a business as are considered necessary;
- (c) powers to impose conditions on registration and to cancel registration where there has been a failure to comply with any such conditions;
- (d) the giving of written notice of lists of approved organisations, decisions to register, refusals to register and revocations of registration; and
- (e) such other matters so as to regulate the procedures to be adopted where the Authority is minded to refuse a registration or revoke a registration.
§ (8) Regulations under this section shall be made by statutory instrument which shall be laid before Parliament in draft and shall be subject to approval by resolution of each House.
§ (9) Where the Authority has reasonable grounds to suspect that—
- (a) the terms of registration have been breached, or
- (b) an offence under subsection (1) above has been committed by a person who is neither a qualified nor a registered person,
§ (10) Any written information made under subsection (9) above must state the grounds for suspicion and the class of documents or records that the Authority considers will be relevant to the discharge of its duties under this section.
§ (11) Where the Authority has entered premises pursuant to a warrant issued under subsection (9) above it may take possession of any such documents or other material found on the premises as are specified in the warrant; and it may hold such material solely and for so long as is necessary to discharge its duties under this section; and it may not disclose such material to any person other than in 577 the course of discharging its functions under this Act save to the owner of the documents or to such other persons as the owner may have authorised.
§ (12) There shall be a right of appeal to the High Court against a refusal of registration or the imposition of any condition on registration or the revocation of registration by the Authority; and no revocation of registration shall have effect while any such appeal is pending.
§ (13) In this section, "to undertake for reward" means to carry out an activity in return for payment to which the person carrying out the activity is entitled, whether by contract or otherwise.").
§ The noble Lord said: My Lords, here we are concerned not with racketeers but with people who give advice to those seeking help with our immigration and asylum procedures. The people who give help may be qualified lawyers—usually solicitors—or they may be other types of advisers. One of the difficulties in trying to bring some sense and an element of regulation into this area is that the advisers range from those who are legally and professionally qualified to those who are unqualified but may still provide a very high standard of help and advice.
§ It is probably right that the regulation, the control, of qualified solicitors should be left to the Law Society. There are individual solicitors, a minority, who do not give good advice. Anyone who has dealt with individuals who have had difficulty with our immigration and asylum procedures will occasionally find, as I have, a solicitor who is not sufficiently experienced in this area to give proper advice to applicants. We all know that this is the case and we know that such people are outweighed numerically by those who are excellent lawyers. But it is not easy for a person seeking help to know who is or is not good when the individual seeking that help is a stranger to this country. But the question of qualified solicitors who are not as good as they might be in that regard is better left to the Law Society rather than setting up another regulatory system.
§ Amendment No. 52 is therefore concerned with advisers, but those who are exempted from the proposed new system are what are called qualified persons; and qualified persons would be lawyers or barristers, employees of an advisory organisation or registered charity, approved by the new authority to be established, or an employee of a qualified person registered under this section.
§ The intention of this new clause is that a new authority should be established, entitled the immigration practitioners registration authority, and that would be for individuals not covered by the provisions regarding qualified persons, to which I have already referred. The purpose of this authority would be to oversee the work of individuals and organisations that give advice, to make sure that they conform to certain standards. The authority would have the power to prevent individuals or organisations from practising if they did not meet those standards. They would have power to impose restrictions on registration and also to cancel such registration.
§ I know this is a very difficult area. Some individuals may not be qualified but I know from personal experience that individuals who work for organisations, and do so voluntarily, provide a high and excellent 578 standard of advice. Often they have the additional advantage of being able to speak the language of the claimant they are advising. I do not say for a moment that individuals who do not have a formal qualification in this field cannot give good advice: many of them do. Unfortunately there are others who exploit the situation. All people who take an interest in these matters—I have come across them myself—know that there are people who charge money for referring people in need of help to a Member of Parliament. They say that they alone have access to Members of Parliament, which of course is not true. There are others who charge money for giving poor advice or misleading information, missing appeal dates, and so on. It is these people who exploit innocent, unsuspecting asylum seekers. They take their money but do not provide the help. This new clause would therefore provide an element of regulation so as to ensure that when people go for advice they at least get advice which meets a minimum standard, that they are not exploited and that the system works reasonably properly.
§ Our immigration and asylum laws are very complicated—they become more complicated with each new piece of legislation—and so it is not surprising that people should need professional help and advice all the way through, and know what their rights are. This new clause would help significantly in this, leaving the regulation of solicitors to the Law Society, as I said before. I beg to move.
§ Lord Avebury
My Lords, I added my name to this amendment, not because I necessarily subscribe to every detail of the scheme which is proposed, but because I believe that some sort of registration is absolutely necessary. I was the more convinced of that when I read the Law Society's memorandum which set out a number of considerations regarding the activities of unlicensed practitioners. These made one's hair stand on end. They showed clearly how the whole system can be disrupted by the incompetence of some of these people. I entirely accept what the noble Lord, Lord Dubs, said: that many of these people may be unqualified but nevertheless give a very good service to their clients. However, there is a penumbra of them whose service is grossly inadequate and actually very harmful to the clients themselves.
I recently dealt with the case of an individual who had applied for asylum and had consulted one of these so-called advisory organisations, which I think consisted of a single individual. The man kept on asking what had happened to his case and the practitioner wrote back saying that the matter was under control and that he was in detailed consultation with the Home Office. Eventually he found out, when the practitioner went out of business, that he had not written to the Home Office at all and the Home Office, thinking that the person had deliberately refrained from getting in contact, issued a notice of intention to deport. That was entirely the fault of the individual who was pretending to give advice, while taking money for so doing, when in fact he had done nothing whatever.
It is absolutely necessary to have a system of regulation to deal with such people. However, I am not competent to say whether the system proposed by the 579 noble Lord, Lord Dubs, is the best that we could have. Nevertheless, I believe it would be useful if the Minister could say that it was the Government's intention at a future stage in the Bill's proceedings to introduce a system of regulation which would control the activities of such unlicensed practitioners who do so much harm.
§ Baroness Blatch
My Lords, the purpose of the amendment is to create a statutory regulatory body to supervise and oversee the activities of immigration advice practitioners. That would not include solicitors and barristers who would be classified as "qualified persons" under the scheme proposed in the amendment and, consequently, would not be required to register with the regulatory body.
I recognise that this is an area where concerns have been expressed, and I understand the view that the situation requires some response. Several noble Lords will no doubt have been informed about individual cases which may have disturbed them. There is some anecdotal evidence concerning cases of overcharging, poor advice and poor service by immigration advisers. The difficulty is that comprehensive evidence of the scale of any abuse is simply not available.
The Government question whether it would be wise to contemplate a regulatory scheme of the kind proposed here in the absence of such evidence. Let us for a moment think about the implications. The scheme involves setting up a full-blown regulatory authority by the noble and learned Lord the Lord Chancellor. He would be required to address the most detailed issues concerning fees, business management, record-keeping and supervision of employers. He would also have to specify on what basis he could be satisfied about the competence of a registered person to act as a practitioner, and define professional standards, presumably based on prescribed qualifications and examinations. He would, furthermore, have to justify a decision both to include a person on a register and to remove someone from it. Decisions by the authority would need to be proof to legal challenge by means of appeal to the High Court. It follows that it would need to set up investigative machinery of a kind which would add to the regulation in that area.
All that is a sizeable bureaucratic undertaking. Can we be satisfied that it is a proportionate response to a problem whose scale has not yet been identified? Further, this approach raises deeper questions about the extent to which the Government should attempt to regulate areas where, no one denies, there may be occasional abuses. In particular, it would be a significant step for the Government to attempt to regulate the market by fixing the fees. The Government have always taken the view that regulation of that kind is in principle undesirable unless a clear need can be shown for it on the basis of the social harm which would otherwise occur. Of course it is right to be alive to the prospects of exploitation. But, on the evidence available, I question whether the Government should become so directly involved as the amendment suggests. Why regulate that area of legal fee in particular? Many people can cite instances where they think that they have been overcharged for legal services, but we have not thought it proper to step in to regulate the scale of such charges.
580 That is not to suggest that the Government are complacent about the remedies available. The first point to make is that the Government have been prepared to deal with the most excessive activity of this kind where the provision of advice is linked to racketeering—I have to say that that is a measure which is not supported by the noble Earl, Lord Russell. The new powers in Clause 5, which we have already discussed, deal with those who facilitate the entry of asylum seekers or where deception is practised. Where such activity is conducted under the guise of giving advice it can be dealt with under the powers in Clause 5. But concerns were expressed that such powers should not bite on legitimate activity. It would be inconsistent, therefore, to opt for regulation for activity which fell short of the scale required to generate a prosecution under Clause 5.
Furthermore, we should not dismiss the legal remedies which are currently available. If it could be shown, for example, that pecuniary advantage had been gained by deception in a particular case—I cite the example given by the noble Lord, Lord Avebury—then a prosecution could be brought.
The statutory, regulatory schemes which have been proposed during the passage of the Asylum and Immigration Bill would almost certainly involve additional public expenditure. The Bill has no money resolution. Fees payable for registration under a statutory, regulatory scheme could offset the cost of operating the scheme, but it is unlikely that such fee-income could ever completely cover the cost.
The Government have recognised the concerns which have been expressed on this subject and have responded by talking to those directly involved. Discussions have taken place with the Law Society, the Immigration Law Practitioners Association, and the appellate authorities. These discussions have identified a number of issues which would benefit from greater attention, to see if any abuses or excesses can be curbed from within the system rather than by intervention by the Government in such a bureaucratic way. The Chief Immigration Adjudicator, Judge Pearl, has kindly agreed to convene at regular intervals a meeting of those concerned in the recent discussions to pursue the points which have been identified. We think it right to await the outcome of this work before considering whether any further steps are necessary.
The Government have given this matter careful thought. Despite the lack of detailed information, we are not convinced that the scale of the problem requires a solution of this kind. We will continue to discuss with those concerned what might be an appropriate response.
§ 11.45 p.m.
§ Lord Dubs
My Lords, I thank the Minister for her detailed response to the amendment. I fully accept that the scheme in the amendment is complex and may not be the best scheme. However, it is beyond doubt that there are difficulties. The Minister says that she is not aware of the scale of the problem. I understand that, because we do not have hard evidence. However, I suggest that the evidence which exists is a little more than anecdotal. Rather a large number of instances has 581 been quoted. If one talks to Members of Parliament with constituent responsibilities in inner cities, most will give information about advisers who have not behaved at the professional level to which asylum seekers and others seeking help are entitled.
The Minister's key argument is that the system is complex; and that perhaps the remedy was out of proportion to the problem. She asked whether regulation was necessary. If nothing is done the difficulties will continue. It is difficult for an aggrieved party to use the legal remedies that exist. If an asylum seeker has been given advice that is not adequately professional, it is extremely difficult to find a way to obtain compensation through the legal system; it probably never happens.
The Government have been a little more sympathetic in the past. I have raised the issue over the years with more than one immigration Minister. The normal response was, "This is rather difficult. It we could find a satisfactory system, we'd think about it".
I am not sure how wide Judge Pearl's terms of reference are in the investigation to which the Minister referred. If they are wide enough, I shall be content. From the way the Minister described the situation, I did not understand whether his terms of reference are wide enough to identify the scale of the problem, and to give us more details about the number of people who get into difficulties because they do not receive good advice.
While occasionally it is a matter of deception which might be covered by Clause 5—it is marginal whether that is so—more often poor quality advice received simply does not help the individual. I draw some comfort from what the Minister said about Judge Pearl's work. If the terms of reference of this work are wide enough, I shall draw even more comfort from that. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Increased penalties]:
Baroness Williams of Crosby moved Amendment No. 53:
Leave out Clause 6.
§ The noble Baroness said: My Lords, at this late hour of the night I want only to speak briefly to Clause 6, and ask the noble Baroness to reply. One of the prime problems with this whole Bill—I think all of us in the House are aware of it—is that it embraces within its terms those whom the noble Baroness rightly describes as unacceptable, and indeed unforgivable, racketeers who live on the backs of people who have great needs and great worries. The racketeers exploit those people in every way and endeavour to make large sums of money out of them. Not a single Member of this House would condone those people.
§ On the other hand, there are people who are confused, worried and frightened and who find that only by pulling all sorts of strings and using all sorts of devices, including in some cases, bribing the police who are imprisoning them or holding them or torturing them, can they manage to escape from totally unacceptable and intolerable conditions. The difficulty all of us on both sides of the House have in dealing with this Bill is trying 582 to act in such a way that we catch the racketeers without damaging seriously the interests and concerns of those whom they exploit.
§ The penalties in Clause 6 are among the most serious penalties that can be applied in the canon of criminal justice to any crimes that anyone commits. They are absolutely appropriate for the organised racketeers who live on the back of illegal immigration. However, they are wholly and absolutely inappropriate for the confused, troubled and sometimes brave people who try to find their way to this and other countries as asylum seekers, having in many cases put their lives or those of their families at risk. I take it the noble Baroness will say that this is a matter for the courts and that as these are maximum penalties the courts will have to decide what is the appropriate penalty. However, if there is anything the noble Baroness can say about the difference between these two groups, and the extent to which justice for one can be so meted out that it does not involve injustice to the other, I for one would very much appreciate it. I shall not press the amendment to a Division. I beg to move.
§ Baroness Blatch
My Lords, I must confess that this amendment has come as a bit of a surprise. Clause 6 is probably the clause which has attracted least attention during the consideration of this Bill. It is a minor technical clause which addresses an inconsistency between financial and custodial sentences available for certain offences under the Act. It does no more and no less. Currently, a magistrate can impose a sentence of six months, the longest sentence which can be handed down by a magistrate, for the offences listed in Clause 6, but he can only impose a level 4 fine up to £2,500. Level 5, that is, £5,000, is the maximum fine that can be imposed by a magistrate, and it is normal for a magistrate to be able to impose equivalent custodial and financial penalties. That is all that Clause 6 does. The amendment, if accepted, would maintain the inconsistency that currently exists, and I can see no benefit in that. I would urge the rejection of this amendment, although I understand it will not be pressed. The point that the noble Baroness makes is absolutely valid. It would have to be a matter for the courts to reflect the seriousness of the offence by imposing a fine within the range of nought to £5,000.
§ Baroness Williams of Crosby
My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Power of arrest and search warrants]:
§ [Amendments Nos. 54 and 55 not moved.]
Lord McIntosh of Haringey moved Amendment No. 56:
Page 6, line 3, at beginning insert ("When a person has been lawfully arrested for an offence to which this section applies").
§ The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 57.
§ In Clause 7(3) we are dealing with a power of entry and search which is not concerned with entry to make an arrest—that is dealt with in earlier parts of Clause 7—but with a search for evidence. Subsection 583 (3) provides that the offence to which this clause applies, which is defined in subsection (4) and is, basically, illegal entry, overstaying and the new offence of obtaining leave to enter or remain by deception, should be the basis for the entry for search purposes.
In Committee, we moved a number of much more radical amendments than this one. We were concerned, as the Minister will recall, about the definition of "serious arrestable offence"; with the equation between obtaining leave to enter or remain by deception in particular with a serious arrestable offence; and with some of the provisions relating to warrants and the ability for a constable or immigration officer to make an arrest without warrant. We are being very much more modest, as is appropriate at Report stage, with this amendment. What we are doing is looking back at what the noble and learned Lord, Lord Mackay of Drumadoon, said in Committee about,
the seizing of evidence which may help to establish one way or another whether a person is guilty of the offence as charged".— [Official Report, 2/5/96; col. 1782.]
§ We would not go so far as that. We do not think that we should wait for a charge before such a search is undertaken. But we do think that there should be an arrest first, and there should not simply be a fishing trip for evidence before an arrest has been made. After all, when a search is made in relation to a serious arrestable offence of the traditional kind, it is likely that the search will be for some essential piece of evidence, such as a murder weapon, a cache of drugs or something of that sort. We accept, at least for the purposes of this argument, that that sort of power is appropriate; and it is provided for under the Police and Criminal Evidence Act. But surely it should be applied here only where evidence is not likely to be comparable. There is no blood-stained clothing in an immigration case. It should apply only when there has been a lawful arrest—that is the wording of the amendment—and the reference to the offence should be to the offence for which the person has been arrested rather than the offence in general.
§ So we do not oppose the provision for the search. We are just saying that it should be confined to the cases where an arrest has taken place and should not be a fishing trip. I beg to move.
§ Baroness Blatch
My Lords, this pair of amendments would fundamentally alter the power provided by Clause 7(3), so much so that they are essentially wrecking amendments.
There was much criticism of this measure when we debated Clause 7 in Committee. The criticism focused on the elevated status being given to the offences set out in Clause 7. It was argued that by adopting the power to issue warrants to search for material in connection with the investigation of serious arrestable offences which is set out in Section 8 of the Police and Criminal Evidence Act 1984 for immigration offences, immigration offences are thereby placed on a par with serious arrestable offences such as murder, manslaughter and rape.
Nothing could be further from the truth. Immigration offences are not raised to the same level of seriousness as murder, manslaughter and rape as a result of the 584 measure set out in Clause 7(3). Section 8 of PACE provides a power to issue warrants to search for relevant evidence, and all that Clause 7(3) does is include the offences listed in Clause 7 among the offences to which Section 8 of PACE applies. This construction is a convenient way of providing the power to search for relevant evidence which we believe to be an important part of any concerted and comprehensive package of measures to deal with those who break our immigration laws.
Clause 7(3) provides justices with a power to grant warrants to constables to enter and search premises to search for evidence relevant to the offences listed in Clause 7(4). A justice needs to be satisfied on five separate matters before he can issue a warrant.
It appears that these amendments seek to limit justices' ability to grant warrants for fear that without that limit, warrants will be handed out indiscriminately allowing constables to undertake "fishing expeditions" on the offchance that they might find something. Clearly, that will not happen, because, as I mentioned before, the justice has to be satisfied on five separate matters before granting a warrant.
One of the matters as to which the justice has to be satisfied before granting a warrant is that an offence to which Clause 7 applies has been committed. The power to search for evidence provided by Clause 7(3) is essentially an investigative aid; the justice will have to be persuaded that an offence has been committed in order to issue the warrant, but it may be essential to obtain further evidence, through the execution of the warrant, in order to secure the arrest of the immigration offenders.
These amendments would make the power to obtain warrants a purely reactive measure, providing the means to obtain further evidence only after an arrest has been made. In any cases where relevant evidence had to be obtained in order to make an arrest, and such evidence could only be secured by searching premises, it must follow that the arrest would never be made if these amendments were to be accepted.
That is why I have referred to these amendments as wrecking amendments and why I must resist them.
§ Lord McIntosh of Haringey
My Lords, I very much doubt whether an objective observer looking at the modest extent of these amendments and the degree to which they are less wide-ranging either than the amendments that we put forward at Committee or indeed than the remarks of the noble and learned Lord, Lord Mackay of Drumadoon, at Committee, would concur with the Minister's view that they are wrecking amendments. She said it twice. Even after midnight that is a bit over the top.
We are dealing with a minor modification to a provision of existing legislation where it is the power of a justice to authorise entry and search of premises and the equation is being made between immigration offences and serious arrestable offences. If the Minister says that we are restricting the power of a justice to authorise warrants, so be it. That was our intention. We 585 are concerned that those warrants should not be used simply as fishing trips for evidence without any serious reason for suspicion that a person is guilty.
We must always remember that warrants of this kind are intrusions of privacy, not only of people's homes but also of public places. It is undesirable to extend the powers more than is strictly necessary for the pursuit of justice, law and order in this country. I do not accept that they are wrecking amendments. I can see, if the Minister had wanted to argue it, that we should have said that there should be at least a warrant for the arrest of a named individual rather than actual arrest. Perhaps 586 that is a further fall-back we will consider at the next stage. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 57 not moved.]
§ The Lord Advocate (Lord Mackay of Drumadoon)
My Lords, I beg to move that consideration on Report be now adjourned.
§ Moved accordingly and, on Question, Motion agreed to.
§ House adjourned at four minutes past midnight.