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Baroness Blatch: In all the cases cited by the noble Lord we are suggesting that the adjudicator has the widest possible powers. He does not consider only procedural matters but he has the powers to determine. In order to make a determination he may continue to seek additional information from the Home Secretary, the Home Office and the applicant. He may seek any relevant or additional information that he believes is important to give a judgment either to allow or to dismiss the appeal. His powers allow him either to dismiss or to allow the appeal, and he can continue to

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keep a case before him until he is absolutely satisfied that he has taken into account all the information he needs to reach that view.

Lord McIntosh of Haringey: There are two answers to that. The first is that if that is the case, it destroys much of the argument about delay. The special adjudicator must call successively for different papers and for responses from the different parties to the appeal to the papers produced by the other side. That is bound to result in a more drawn-out process than a single hearing. Secondly, it is unlikely to be effective. A reconsideration of the case called for by an adjudicator would bring together all the evidence in a way that the adjudicator dealing only with the papers cannot. It might well speed up the appeal.

The amendment does not provide that the adjudicator should not wherever possible determine the appeal. Of course he should. He should either reject or dismiss the appeal whenever he can. However, the most effective way of dealing with a case in respect of which he has a doubt about whether the appeal is justified--a doubt based on the way in which the case was considered before it reached him--in terms of justice and of avoiding delay, would be for the case to be referred back to the Secretary of State for further consideration. Again, as with the previous amendment, we must return to this matter on Report because the Government's position is neither right nor expedient. I beg leave to withdraw the amendment.

Amendment No. 29, as an amendment to Amendment No. 1, by leave, withdrawn.

Baroness Hilton of Eggardon moved, as an amendment to Amendment No. 1, Amendment No. 30:

Line 62, at end insert--
("( ) Nothing in this paragraph shall be construed as applying to a claimant who is, or who appears to be, under 18 years of age, and where the age of the claimant is in doubt or is in dispute the burden shall be on the Secretary of State to demonstrate that the age claimed by the claimant is incorrect.").

The noble Baroness said: In moving Amendment No. 30, I shall speak also to Amendment No. 45. As previous speakers have said, there has been no dramatic increase in immigration in recent years. Very few immigrants have been unaccompanied children. In 1995 only 486 unaccompanied children aged under 18 made applications for asylum at the ports of this country. A further 99 made application after being admitted to the country.

To subject that handful of children to the fast-track procedure seems particularly mean-spirited. Children as well as adults can be the victims of persecution and torture. For example, in conflicts such as that in Rwanda, where genocide was the main aim of the warring parties, many children die merely because they belong to the wrong tribe. In other countries such as Liberia and Angola, children as young as 12 and 13 may be forced to be soldiers. That is not a good start to life as a responsible citizen.

The United Nations estimates that half the world's refugees are children. Inevitably some of those will arrive unaccompanied on our shores seeking asylum.

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The purpose of the amendment is to ensure that children have a full opportunity to present their case for asylum which is unlikely to be possible through the fast-track procedure.

The amendment also places the burden of proof on the Secretary of State to prove that the asylum seeker is over 18 if he has claimed to be a child. Those two provisions need to go together so that the exclusion of children from the fast-track procedure cannot be circumvented by an assumption that they are adults.

The judgment of age is notoriously difficult. My early police experience, which often depended on judging whether somebody was under or over 17 so that he could be sent home or back to approved school, resulted in my endlessly making mistakes as to whether someone was a child or an adult. I learnt rapidly that adolescence is an extremely variable state: boys of 15 may have moustaches and girls with well-developed figures may be only 14; on the other side, pint-sized youths may legally be adults. Therefore, it seems important that immigration officers or other officials should not be able to make a judgment without evidence that the person in question is an adult. If the age of an appellant is at issue at the appeal, lengthy legal arguments as to the young person's real age are likely to ensue. It is essential that a child has legal representation.

It is also possible that the search for documentary evidence may take many weeks. The rules which apply to the interviewing of children make it difficult to arrange or conduct the necessary interviews expeditiously. The complex issues involved therefore make it all the more essential that a child has legal representation; that his rights are protected; and that adjournments may be sought to obtain evidence. For those reasons, it is inappropriate to apply the fast-track procedure to children. It is appropriate to place the burden to prove age on the Secretary of State.

Amendment No. 45 depends on many of the same arguments but it is intended to remove the power to send an unaccompanied child to a third country while awaiting the results of an appeal. Again, it would place the burden of proof to prove that the applicant is an adult on the Secretary of State.

It seems to me that the proposed third country procedure is a denial of justice even to adults, but I believe that it would be barbaric if applied to children. Moreover, it is current government policy not to return a child to a country unless there are adequate arrangements for that child to be met and cared for. That will be far more difficult to fulfil in relation to a so-called third country where presumably a child will have no family or friends. That gives added force to the amendment. In view of those considerations, I beg to move the amendment.

Lord Renton: I would have thought that this amendment, however well intentioned, would cause real problems. The burden of proof should surely lie on whoever has or is most likely to have the necessary information as to the child's age. The Secretary of State will not have that information but the child, the child's parents or anyone escorting him is likely to have it. Therefore, the burden of proof should lie upon the

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claimant and not upon the Secretary of State to disprove the matter. That would be an entirely negative burden to place upon the Secretary of State. I really feel that in the public interest, the Government could not accept this amendment.

6.15 p.m.

Baroness David: The point about these amendments is that these children are unaccompanied. There will be no parent or friend with them who can say for sure that they are over 18 or under 18. A child may well come with false documents which perhaps say that he is 18. There must be some way of proving it and the burden of proof should not be on the young person. I know that it is very difficult to prove it and it may need doctors or paediatricians, to give the proof. But I think that it is very hard to take the view that an unaccompanied child is over 18 when he may well not be.

With these amendments we have at last come to amendments about children. It is important that they are recognised as a very special and vulnerable category of people in an excessively difficult position when coming to a country that they do not know and whose language they do not know. We should give them very special consideration.

The Home Office recognises this in a variety of ways. Current Immigration Rules 352 and 353 apply to unaccompanied children. Under those rules, children are not interviewed unless the information cannot be gathered in any other way. If they do have to be interviewed, they must be accompanied by an independent adult and the interview must be conducted sensibly.

The Government have also maintained a policy of not returning a child to a country unless there are adequate arrangements for that child to be met and cared for in that country. It is argued that it would be inconsistent to make all those exceptions in the case of children but not to make an exception in the case of the accelerated appeals process, such as that provided in Clause 1.

As my noble friend said, 357 unaccompanied children who applied for asylum at ports in 1994 were from countries which the Government propose to designate as generally safe.

In correspondence, Miss Widdecombe, from the Home Office, has argued that children can spend the time that they wait for a decision obtaining relevant evidence to use in their appeal. That is only true if the child or his relative can predict accurately the points which the Home Office will use to refuse the asylum application. In most cases, that is not possible, no matter how experienced is the representative. Sometimes it is clear that a particular issue may arise, such as whether a child will be met and appropriately cared for if returned to his country. It is then that the representative can make some inquiries on that matter at an early stage.

However, often there will be a need to refute the specific reasons given by the Home Office. For example, a child may have lost contact with his parents and not know where they are. The representative can take some measures such as contacting the Red Cross family tracing service or writing to the last known

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address or workplace of the people concerned. If, however, the Secretary of State alleges, in his refusal reasons, that the FCO staff in the country in question have discovered that the applicant's father is working for a particular firm or is residing at a particular address, the representative will still need time to check that information.

It is simply impossible for any applicant or representative to address every possible point or piece of evidence that the other side may raise in advance. Exemption from the Clause 1 procedure would not mean that the cases of children could not be prioritised by the Immigration Appellate Authority as they are now. They could perfectly feasibly continue under the new system. That would mean that children's cases could be dealt with promptly but without the pressure to dispose of the case within 17 days, which will either disadvantage the child or lead to an adjournment beyond that target.

Therefore, this first amendment will ensure that the particular difficulties of asylum-seeking children are reflected so that their cases are given full consideration. If the Bill proceeds unamended, the cases of children will either not be fully considered or they will clog a system designed to accommodate speedy cases.

I turn to the second amendment in this group, Amendment No. 45, which would mean that unaccompanied refugee children could not be sent to safe third countries, either with or without an in-country right of appeal. As I said in speaking to Amendment No. 30, the Government have maintained a policy of not returning a child to a country unless there are adequate arrangements for the child to be met and cared for in that country. Miss Widdecombe, in a letter to David Alton, has reaffirmed that. The letter states:

    "I am also happy to reaffirm that even once a child has exhausted his or her appeal rights, the Immigration Service will not seek to return children abroad until reception and care arrangements in their country are made. These arrangements will also be notified on a case-by-case basis to the relevant authorities responsible in this country for the care of the children".

The uncertainty over possible removal to a safe third country and legal disputes over that possibility will prevent them from doing this. Refugee children may have been sent to the UK because they speak some English or because there is a well-established community from their country here. But such factors are even more important for children travelling alone than for adult asylum seekers, so the effect of removing to a country deemed safe is likely to be very much more disruptive and damaging. I hope that the Minister can take the case of these children very seriously and agree to the amendments.

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