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Lord Swinfen: I thank my noble friend for his response to the amendment and will certainly withdraw it. I hope that the Disability Discrimination Act we have recently passed will help go a long way to satisfying my demands. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 265ZA and 265ZB not moved.]

Clause 159 agreed to.

Clause 160 agreed to.

Clause 161 [Terms and conditions of assistance]:

[Amendments Nos. 265ZC and 265ZD not moved.]

Clause 161 agreed to.

Clause 162 agreed to.

Clause 163 [Application for assistance]:

[Amendment No. 265ZE not moved.]

Clause 163 agreed to.

Clause 164 [Inquiry into cases of homelessness or threatened homelessness]:

[Amendments Nos. 265ZF and 265G not moved.]

Clause 164 agreed to.

Clause 165 [Persons from abroad not eligible for housing assistance]:

[Amendments Nos. 265ZH and 265A not moved.]

Lord Dubs moved Amendment No. 265AA:

Page 96, line 35, at end insert--
("(1) Nothing in subsection (1) above shall render ineligible under this Part any claimant pursuing an appeal under the Asylum and Immigration Appeals Act 1993.").

The noble Lord said: During debate on the amendment dealing with whether or not people had accommodation abroad, the Minister reassured the Committee by saying that if an asylum seeker had accommodation elsewhere but had fled for safety, the provisions of the Bill would cover his application. Yet Clause 165 denies that proposition. The amendment

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seeks to ensure that any claimant who pursued an appeal under the Asylum and Immigration Bill would be eligible under this part.

I agree that the issue is a little narrower than the point made earlier by the Minister. However, the amendment deals with the difficulty that arises when a claim made by an asylum seeker has been turned down and, quite properly, the asylum seeker exercises his right to appeal against that decision. In a number of instances he will win his appeal. The difficulty is that there is a gap in terms of entitlement under a range of provisions between the Home Office turning down the application and a successful appeal. The period of the appeal process can be lengthy. The amendment ensures that during that period an asylum seeker would not lose his entitlement under this part of the Bill. We believe that that is natural justice; otherwise we deny people the right which they may win back if the appeal is successful. They may experience serious housing difficulties during what may be a lengthy period.

It is a difficulty which runs through the Government's proposals on asylum. However, it is in sharp relief in this provision. I assume that people would lose any accommodation that they might have obtained from the date that the Home Office informs them that the appeal has been unsuccessful. Presumably upon winning an appeal, those people will gain the accommodation back. The situation is confusing; it is unsatisfactory. The amendment would make the position clearer. I beg to move.

Earl Russell: The right to appeal against an unfavourable asylum decision is becoming a little like the proverbial right to have tea at the Ritz: everyone has the right to do so, and a great many people are unable to do so.

The difficulty in exercising legal rights is a constant phenomenon. We do not want to make it any worse than it is. If the right of appeal is to remain meaningful, the right to live somewhere while one exercises that appeal necessarily has to go with it.

It is a little difficult to serve papers in "cardboard city". Addresses within it are flexible. While the Minister admires flexibility in all sorts of places, I do not think that he takes his admiration quite that far.

Lord Hylton: I support the amendment. It seems quite wrong that a person should be consigned to a housing limbo, or possibly a housing hell, simply because he or she has exercised his or her right of appeal under asylum and immigration law.

Lord Mackay of Ardbrecknish: Amendment No. 265AA, which the noble Lord, Lord Dubs, moved--he did not speak to the other amendments grouped with it--would prevent persons who were appealing an adverse decision by the Home Office on their asylum claim from being prescribed in regulations as ineligible for assistance under Part VII.

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Perhaps I may go back a step and remind the Committee of where the amendment arose. When people apply for asylum at the port of entry they are eligible for benefits. They are also eligible for consideration under the homelessness legislation. We got into difficulty earlier with that, but I am clear about it. Those people who apply in country are eligible neither for the benefits nor to be considered under the homelessness legislation. After some months--we hope fewer with each passing month--the Home Office makes a decision. If it is adverse--for example, in 1995 it was adverse in 79 cases out of 100--and does not grant refugee status or exceptional leave to remain, the next step for that person is to appeal.

I shall be quite open about it. I have already explained to the Committee that one of the problems is that it is a no-lose situation for the asylum seekers. Until recently, if they put in an appeal, they simply stayed on benefits and were considered under the homelessness legislation for as long as the appeal took. It could take quite a time, partly because of the considerable numbers we have experienced coming to the country, and also partly because in a number of cases the applicant was able to spin it out by asking for adjournments. So there was almost a perverse incentive for people to appeal and draw out the appeal because it enabled them to remain in the country with benefits.

The Government decided that, given the number of people who at the end of the appeal procedures are found still not to merit refugee status, we had to act against a clear abuse of the system. The outcome of the appeal procedures in 1995 was that only 3 per cent. were successful. Yet all the others could have eligibility to benefit.

In the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 which your Lordships approved and which came into effect last February, the changes we made mean that asylum seekers who have received a negative decision on their asylum claim are not entitled to benefit. That includes housing benefit. It encompasses all those who appeal against the decision. As an aside and for clarity, asylum seekers who make their claim for asylum in-country rather than at the port on their arrival here are not entitled to housing benefit at all.

We are squaring the homelessness legislation with the decision that we have already taken in the social security legislation, in particular on the housing benefit system, where payments are not made during the course of an appeal. The amendment would mean that a person could, on appeal, continue to claim under the homelessness legislation and the local authority would be obliged to assist them. That would run contrary to the principles of the policy which we have brought in regarding entitlement not only to the benefit system but also to homelessness. For all the reasons I have argued in the Committee today and previously, we cannot move in that direction.

I am asked by the noble Earl, as I have been asked on a number of occasions, "What happens to people in those circumstances?". My answer remains the same. They are in no different position than they have been in

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until now when after some time their appeal was turned down, as it was in the vast majority of cases. They are no longer eligible for any of the benefits or for consideration under the homelessness legislation. It may well advance that day, but it does not change the arithmetic to any great extent. The majority currently are left at the end of the appeal process in exactly the same position as the noble Earl described. As I have argued before, I believe that by taking this step we will concentrate the minds of people who appeal. We will remove the perverse incentive to appeal. We hope we will then be able to deal with backlogs and process applications and appeals much more quickly than we have been able as the numbers have built up over the past decade. So while I understand the noble Earl's point, I believe the position that the Government have taken is entirely consistent and logical and accords with the figures that we have seen over the past few years.

10.45 p.m.

Earl Russell: I am sorry; I am afraid that the Minister's reply to my argument is not true. These people are not in the same position as those whose appeal has been taken through a hearing and they have lost. The difference is that these people, if they are destitute--as they normally are by this time--cannot leave the country as they do not have the means to do so; whereas people whose appeals have failed can leave the country at Her Majesty's expense or, I believe, sometimes at the expense of British Airways. They can be deported. But we are dealing here with people who cannot be deported; they do not have the means to leave the country; and, because they are trapped in this country, any support they may get will be in this country.

Can the Minister show me anything in his proposals as he advances them which discriminates between those whose appeals are found to be justified and those whose appeals are not found to be justified? I do not quite see how he could do that, because we do not know until the hearing takes place whose appeals will succeed and whose will not.

I was brought up in the belief that it is better for 99 guilty people to go free than for one innocent person to be condemned. I know that nowadays that is regarded as an old-fashioned view, but I afraid that I still hold to it. The requirements of justice demand it. That principle applies equally to those who are seeking asylum and have appealed against a refusal.

If anyone else were to introduce restrictions on the judicial process quite this sweeping, Ministers might possibly consider accusing them of a conspiracy to pervert the course of justice. I do not intend to do that. However, I do believe that this measure is a very severe hindrance to the course of justice. The Minister has made out no case for it, except one that rests on a presumption which in some cases is certain to be false; and he has no idea in how many cases it will be false, or indeed in which cases it will be false. The logic of that position is very poor indeed.

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