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Lord Donaldson of Lymington: I rise to support the amendment. Before doing so, I would like to say a brief word about the role of the Court of Appeal. I say nothing about the remarks of the noble Lord, Lord Campbell of Alloway. However, the noble Baroness, Lady Hollis, suggested that the Court of Appeal had delivered a moral judgment. That is not the function of the courts, and the court did not do so. What the majority did was to say that, in the light of their extremely serious consequences, it did not believe that the regulations were within the scope of the primary legislation, bearing in mind other primary legislation. In other words, they were ultra vires. It was a straight legal decision and nothing more, save of course that people can pray in aid the facts, in so far as they were facts, found by the judges. It is important, however, to realise that there is no conflict. I hope that the media will

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realise that there is no conflict, because their circulation depends upon conflict, or imaginary conflict, and it would be unfortunate that this should contribute to their circulation.

I turn to the merits of the amendment. The problem is very clear. It is particularly clear to people like myself who have been involved in judicial review. Visitors to this country apply to the immigration officer for leave to enter and remain for a wide variety of reasons. He may or may not probe those reasons but, as the Government have made absolutely clear, implicit in the application in every case is that there will be no charge on public funds.

Time goes by and the visitors decide that they would like to stay longer, if indeed they did not always intend to stay longer. They appeal for extensions of time and the like. Meanwhile, life goes on as before for them. But when eventually the end of the road is reached they dive into their back pocket and remove the asylum card; they claim political asylum. That is a monstrous position and the Government have sought to tackle it in a way which, to them, seems plausible, particularly since it is said that the denial of economic benefits to those who come in on the basis that they will not be a charge on public funds is no more than poetic justice.

It is plausible but, in my judgment, it is wrong. I say that for this reason. The remedy needs to be tested, not against the case of the bogus asylum seeker, but against the case of the genuine asylum seeker. When one comes to test it against the case of the genuine asylum seeker, there is again an element of great good sense in the Government's decision--or suggestion--that one should divide those who seek asylum immediately on arrival at the port and those who produce the trump card at a later date. However, as has been pointed out, there are many who arrive in this country in a state of some confusion, in high stress, with language difficulties, fearing the authorities, and so on and so forth. For that reason, in my judgment, the amendment is right to extend the period. I would myself have extended it further than the amendment suggests--to such period as gives the asylum applicant a chance to catch his breath.

The case in the Court of Appeal was an extreme example of the surprising results of simply stopping at arrival. Miss or Mrs. B.--I only know that she was a lady--arrived by Eurostar and immediately changed trains and went to Lunar House to claim asylum. But she would have been in the in-country category, the same category as people who claim asylum six months later. In order to balance that argument, I have to say that I cannot for the life of me understand why she was not sent straight back on the basis that she came from a third safe country. Perhaps that is a detail. There is a case for drawing the line somewhere. The matter is not dealt with by any amendment in this House. I venture to believe that when the line has been drawn--and as I said, I would draw it slightly further away from the port of entry than the amendment suggests--the remedy should not be an economic remedy but should be a refusal to entertain a claim for asylum unless it can be

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proved by the applicant that circumstances in his case have arisen for the first time after arrival giving rise to a well-founded fear of persecution.

As far as I know, there is nothing in the convention which stops time limits being put upon applications for asylum. I would have been very much happier--indeed, I would have supported the Government--if they had said there should be a reasonable time, specifying a reasonable time, after arrival in the port for making an application, saying, "Thereafter, we will not entertain an application. You have been warned on arrival"--by multi-language leaflets or some other appropriate means--"that if you did not ask for asylum now you would not get it". That seems to me to be the right way to address this problem. It honours our obligations under the convention; it is humane; and it takes account of the difficulties which are faced by somebody coming to this country if he is a genuine asylum seeker.

But there is one amendment and, although it does not go the whole way, as I should like, it certainly has my support so far as it goes.

4.30 p.m.

Baroness Rawlings: I thank the Minister for his clear explanation of the new clause. The stories that we heard from Members opposite, the Cross-Benches, and the right reverend Prelates during the long days and nights of our debate surely reveal true and moving situations. If asylum seekers are genuine and abide by the law, they will receive help and no doubt become genuine refugees. This country has for decades had a proud record in respect of refugees, a policy which has enriched the country rather than impoverished it.

I have sat through most of the Bill and read through all the details with great care. We all agree that the Bill deals with a very important situation which is perhaps aggravated by the world population explosion. There were 44,000 asylum seekers in 1995, of which only 5 per cent. obtained refugee status. If asylum seekers apply at the port of entry, there is no problem. We all know that they will receive benefits. But why should anyone from abroad be able to claim asylum at any time after they have been in this country as a tourist, a businessman or a student? Why should they be guaranteed, for at least 18 months, income support, housing benefit and council tax benefit?

We have heard much criticism from the noble Baroness, Lady Hollis. I am absolutely amazed. We heard that the party opposite would advise people to break the law and tell lies. I can hardly believe it. In the unlikely circumstances that the party opposite find themselves in office, would that government repeal this Bill and would they continue to advise people to break the law and tell lies?

I support the Home Secretary and the Secretary of State for Social Security in this long overdue change. We have already seen the fruits of changes: 50 per cent. fewer asylum seekers, saving the British taxpayer

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£129 million; thus making it easier for true asylum seekers whom we want to help to come through. That must be right. I oppose the amendment.

Lord Lester of Herne Hill: I speak in favour of the amendment. I respectfully agree very much with the remarks of the noble and learned Lord, Lord Donaldson of Lymington, and I shall not comment further on that. I want to deal with two matters. One is the relevance of what the Court of Appeal decided as a matter of law; the other is a problem about the ouster clause and what it means.

In a statement last week the Minister said that following the Court of Appeal's decision:

    "It is the Government's intention to introduce amendments aimed at restoring Parliament's intention".--(Official Report, 24/6/96; col. 596.)
I suppose that what the Minister meant by "restoring Parliament's intention" was the parliamentary approval given for the 1996 regulations. But, if one is concerned with Parliament's intention, surely what matters is the intention in enacting the Asylum and Immigration Appeals Act 1993. That was the basis for the Court of Appeal's ruling as a matter of law that the regulations were ultra vires.

Parliament's intention has been decided authoritatively as a matter of law by the Court of Appeal. I say "authoritatively decided" because, as the Committee knows, the Government decided to forgo their right to pursue an appeal to the Appellate Committee. In the absence of an appeal to the Law Lords, what the Court of Appeal decided about Parliament's intention is therefore truly an authoritative statement of the law as it stands. Contrary to what was said by the noble Lord, Lord Campbell of Alloway, I believe that the Court of Appeal's decision on the legal issues matters very much indeed in this debate.

I hope the Committee will forgive me if I summarise, in a little more detail than has been heard so far, exactly what the Court of Appeal decided as a matter of law. It said that Parliament,

    "has clearly demonstrated by the 1993 Act a full commitment to the United Kingdom's Convention obligations ...[and] the 1993 Act confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular".
The Court of Appeal also held that Parliament intended:

    "that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims";
and again that:

    "Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution".

The Court of Appeal made it clear that the Secretary of State is fully entitled under the law as it stands to discourage economic migrants by restricting their benefits. Lord Justice Simon Brown pointed out, for example, that we could do exactly what has been done in other European countries. He gave some examples: we could make urgent needs payments at a significantly lower rate than 90 per cent.; or, more draconian, we could allow certain categories of claim, such as the

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in-country claim brought more than four weeks after arrival, to be processed as without foundation claims rather on the lines of the remarks of the noble and learned Lord, Lord Donaldson, a few moments ago. Those are the kinds of options pursued in other countries.

But the Court of Appeal made it quite clear that the Minister is:

    "bound to maintain some benefit provision to asylum seekers so as to ensure that those with genuine claims will not be driven by penury to forfeit them, whether by leaving the country before their determination or through an inability to prosecute them effectively".

I apologise for all the quotations. But the amendment tabled by the Government does not restore Parliament's intention in passing the 1993 Act, as found by the Court of Appeal. It frustrates and thwarts Parliament's intention in passing that Act. The Government's intention is directly contrary to Parliament's intention in passing the 1993 Act, because--I see the Minister shakes his head in disagreement--the Government's amendment, as so many Members of the Committee have said, would indeed (to quote the Court of Appeal) impale:

    "a significant number of genuine asylum seekers ... on the horns of [an] intolerable dilemma",
which, in Lord Justice Simon Brown's memorable phrase, is:

    "the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution".
In view of the Minister's disagreement with me, I am bound to say that I cannot understand how the Government can contradict what I said; namely, that what they are doing plainly flouts the intention of Parliament as decided by the Court of Appeal.

If the Government's amendment is passed without any softening amendment of the kind now before the Committee, there will be no benefit provision to asylum seekers merely because they failed to seek asylum on the day when they sought entry. There will be no locus penitentiae. There will be no provision to ensure that those with genuine claims will not be driven by penury to forfeit them, whether by leaving the country before they are determined or because they are unable to prosecute them. That again is contrary to Parliament's intention in passing the 1993 Act. That is an extraordinarily unsightly intention to ask Parliament now to authorise, now at the eleventh hour, coerced by Whips and in some haste.

Moreover--this is the other point I want to raise in relation to the ouster clause--the means chosen by the Government are also troubling. Paragraph (1) of the new clause begins,

    "Notwithstanding any enactment or rule of law, regulations may exclude from entitlement to ... benefits ... any person who has made a claim for asylum".
Read literally, paragraph (1) purports to oust the courts from reviewing whether future regulations are inconsistent with any enactment, including the 1992 and 1993 Acts as well as any rule of law. The principles of legality, rationality and procedural propriety are well known in administrative law.

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I cannot tell whether or not that is the Government's intention. On the face of it, the first words of the ouster clause seem to be calculated to prevent the courts from deciding whether, for example, the regulations were arbitrary or manifestly irrational; whether they were directly or indirectly discriminatory; whether they breached fundamental human rights; whether they breached the 1951 Refugee Convention and so forth.

I doubt whether the courts would interpret the ouster clause in a sweepingly broad way--for example, so as to exclude a hypothetical case where the regulations discriminated on the basis of race or subjected asylum seekers to degrading or inhuman treatment, or prevented them from having access to courts. I gave notice to the Minister asking whether he would be kind enough to explain in his reply what the Government intend to be the proper scope and limits of the ouster clause in paragraph (1). I do not mean to suggest that the Government intend to discriminate unfairly against asylum seekers, whether directly or indirectly; I do not mean to suggest that they intend to subject them deliberately to inhuman treatment or to breach the 1951 convention or any of the other international human rights codes by which the country is bound. I am concerned with the Government's intentions on the matter and would be grateful for a reply to that question.

In every other European country, in virtually every other Commonwealth country--even in the colony of Hong Kong--the validity of this kind of measure would be tested in the courts against some constitutional legal guarantee. In this country, rightly or wrongly, the way our system works is that all that the Government need is a majority vote in each Chamber and the hope that our courts will give literal effect to a wide ouster clause. That is why the Minister's reply on the scope and effect of the ouster clause is important.

In any event, I hope that the Government, in the end, will not have a majority for the amendment in its unamended form. That would produce extremely harsh effects, be likely to lead to further clashes in our courts and be in breach of the international human rights laws.

4.45 p.m.

Baroness Gardner of Parkes: I have listened carefully to the debate today. We have heard much of it before but today we are dealing with a specific context. I support the Government in opposing the amendment of the noble Baroness, Lady Hollis, who said that people arrive here perhaps having been let down by an agent or abandoned. Who are those people? Are the agencies concerned the type referred to by the right reverend Prelate or are they instead commercial entrepreneurs, shipping people overseas because it is a good commercial venture? We must be careful about that situation.

As a lay person I understood the court to say that the regulations were not acceptable because they were not contained in primary legislation. If the Government introduced primary legislation to the same effect, that would be different. If I am wrong in that regard, perhaps someone will clarify the situation for me.

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The noble Lord, Lord Lester, suggested that some basic provision should be made. I agree. He may have read editorials in the newspapers following the court judgment in relation to how many European countries provide some type of hostel accommodation. The right reverend Prelates told us how much the Churches, the community and society are doing to help. As I understand it, if an application for asylum is successful, the person will receive total benefit backdated for the whole of the period and therefore the Churches or community groups who have given so generously should then be able to obtain a refund of the money outlaid. Their work is extremely admirable and charitable.

I was fascinated by the legal part of the speech of the noble and learned Lord, Lord Donaldson. I absolutely agree with him. He referred to people coming here and saying that they would not be an imposition upon the social structure of the country. I would point out again what I pointed out at Committee stage; that is, that many people arrive here with a letter either to or from a friend or relative who says that they will be totally responsible for the person but the applicant later pulls out of their pocket the asylum card that they want to play.

The Australians are much smarter than us in that regard. If one carries a letter saying that someone will entirely support them, a bond must be put up to match the words. If one then imposes upon the social security services or any other benefit department, the person who is supposed to be responsible must meet the bill. In England we are much more generous in that we do not ask people to do that. A genuine asylum seeker receives all the benefits.

We must be careful in accepting the amendment in that it would mean that all those people I mentioned--the students, the illegal entrants, the over-stayers--would be covered. Only 5 per cent. are accepted on the first round; that is a small proportion who are accepted as being genuine asylum seekers. In fact, the over-stayers would have to overstay considerably before coming into the three-day section, but we are also speaking to Amendment No. 12.

The right reverend Prelate mentioned language as being a major difficulty. That is something we tend to overlook. If people spend long periods here waiting for asylum, they should be given an opportunity to learn the language. It is a genuine difficulty that they face. Many of those who have their housing benefit cases heard, sometimes years later, are often still unable to speak a single word of English and that is not very encouraging.

I cannot accept the remark of the noble Earl, Lord Sandwich, in relation to flouting the will of this Chamber. That is not the point. I support the Government's view that the amendment should not be accepted.

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