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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Amendment, by leave, withdrawn.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

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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

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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

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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.


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