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Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until ten minutes past eight o'clock.

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

[The Sitting was suspended from 7.39 p.m. to 8.10 p.m.]

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Asylum and Immigration Bill

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

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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

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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,

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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.

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