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4.39 p.m.

Baroness Hollis of Heigham STPAmoved Amendment No. 10:/st amdtamdtpartextPage 8, line 31, at end insert ("or is given exceptional leave to remain in the United Kingdom")./amdt st The noble Baroness said: My Lords, this is probably a probing amendment, but it may not be--

Lord Hailsham of Saint Marylebone: You cannot probe on Third Reading.

Baroness Hollis of Heigham: My Lords, I hear a comment from a sedentary position about Third Reading. We would not be in this position if the Government had not produced the clause that we are now debating fractionally over 24 hours ago. I think that this side is occasionally entitled to ask for the indulgence of the House when we are coping with what should have been a gap of four weeks between the Committee and Third Reading stages in just 24 hours. If that means that we have to ask for the indulgence of the House, I hope and expect that it will be extended to us. I am seeking to discover the intent behind the clause and whether we are reading it correctly. As I understand it, under subsection (1) any asylum seeker of a prescribed description may be excluded from benefits. Subsection (2) then allows those asylum seekers whose claims succeed and who are then recorded as being refugees to have their benefits backdated for the period during which their claims were being determined. What is the position of those who are not awarded refugee status but who are nonetheless granted exceptional leave to remain? I take it that the Government intend that they also should receive backdated benefit. If not, will the Government explain to the House why not? I should like to make a couple of points. First, the Minister has admitted--he has done so again today--that there is very little in practice to distinguish between the two groups: those called refugees and those who are granted exceptional leave to remain. The Minister's own description earlier was that those granted ELR had bullets flying around them whereas those granted refugee status had a bullet with their name on it. However, the Minister admitted that life was equally dangerous for both groups; that their lives were equally

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at risk; that they were equally entitled to asylum, and that it would be equally inhumane to return them to their country of origin. As the Minister said just five or 10 minutes ago on the previous amendment, those granted ELR may very well have been victims of torture, but not of "torture" as defined under the convention, which would technically classify them as a refugee. The Minister made much of the point that he well accepted that victims of torture could be granted exceptional leave to remain--in other words, the distinction that is made between those granted refugee status and those granted ELR does not hold up to argument. The Minister accepted that many people might fall into one category rather than another according to whether they came from, say, Bosnia, or Somalia. Secondly--this is a different point, I hope--at the moment anyone who is granted exceptional leave to remain is treated under the benefits system in exactly the same way as if they had been granted refugee status. Both are entitled to full benefits. I am not sure whether the Minister is listening to the argument so I repeat that at the moment anyone who is granted ELR is treated under the benefits system in exactly the same way as someone granted refugee status. Both get full benefit entitlement. Once a claim is determined and the claimant is granted either ELR or refugee status, both go on to be treated for benefit in the same way. As far as I am aware it is only in this clause, which we saw for the first time 24 hours ago, that for the first time the Government are seeking to treat those with ELR differently under the benefits system from those granted refugee status. They will grant backdated benefit to those with refugee status, but not to those with ELR, although in all other respects the two groups of applicants are treated identically. Why? It seems utterly mean and unnecessary. We are not talking about very large sums. After all, if somebody seeking exceptional leave to remain applies at the port of entry, he will get benefit. Once a person is awarded ELR, he will get benefit. All that we are talking about is the backdating of benefit for the period during which the claim was being determined. Why draw a distinction between ELR and refugee status only in relation to backdating and nowhere else in the entire benefits system, especially when the Minister has conceded, as he did a few moments ago, that there may be very little to distinguish between the two groups of people on issues such as torture? Thirdly, when the Government made the concession about the backdating of benefit in the light of the Court of Appeal judgment, the Minister made much of the fact that churches and charities which supported asylum seekers in the meanwhile would get their financial costs reimbursed when the benefit was backdated. The Minister said that that would encourage churches and charities to be discriminating as to whom to support. It was an invitation more or less for them to back strong cases. The Government have subsequently accepted that ELR is a strong case. Why then are the Government willing to backdate and to refund when a bid for refugee

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status has succeeded, but not for ELR? If that omission is not accidental and I suspect that it is not--presumably because three times as many people come in under ELR as come with refugee status--what we have is a grudging, mean, arbitrary and unreasonable distinction on one slender point in the entire benefits system, the backdating of benefit. The Government have made a grudging concession in the light of the Court of Appeal judgment, but in this clause they are rowing back even from that concession. I beg to move.

4.45 p.m.

Lord Avebury: My Lords, I strongly support the noble Baroness in this amendment, which corresponds to one that I tabled as a manuscript amendment yesterday but did not move because I felt that it was not fair to the House in the circumstances. I had attempted to table the amendment at 10.48 p.m. on Sunday evening by faxing it to the House. Although it had been taken off the fax machine, it did not reach the Public Bill Office until I came in at 2.30 p.m. on Monday and asked where it was. The amendment was still sitting in an in-tray in the Minute Room. It was then taken to the Public Bill Office and distributed, but it did not become available to your Lordships as Amendment No. 10A until halfway through our proceedings. That is an illustration of the dangers of foreshortening proceedings as the Government have chosen to do. It was not simply a case of the documents relating to the government amendments not being in the Library or the Printed Paper Office when the Leader of the House said that they were, as was mentioned yesterday. The point is that the period of time within which one could study the documents and then formulate amendments was impossibly short, particularly for Back-Benchers who did not have the advantage of receiving the documents prior to their being laid in the Library and the Printed Paper Office, as did the two Front Benches. The amendment deals with an important point. I share the opinion which has been expressed by the noble Baroness that, in practice, there is hardly anything to choose between refugee status and exceptional leave to remain. I think I am right in saying--the Minister has all the figures so perhaps he can remind us of the facts--that in the past 10 years, a period during which the Minister says that there has not been any change in the countries of origin--a matter on which we had a dispute at an earlier stage--there has been a marked shift from the awarding of refugee status towards the granting of exceptional leave to remain when there can be no possible reason in the countries of origin for that division of the asylum-seeking community into the sheep and the goats, with that large increase in the goats compared to the sheep over the 10 years that we are considering. I am interested in certain countries, one of which is Turkey. The number of people from Turkey being successful in applications for asylum has plummeted over the past 10 years, a period when by any objective test conditions in the south-east (where most of the refugees come from) have materially worsened. However, hardly anybody from Turkey is awarded refugee status. Those who succeed in their applications

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are normally granted exceptional leave to remain. I believe that the same is true of Bosnia and Somalia, which were mentioned by the noble Baroness. The conditions in both countries are appalling. The noble Baroness rightly points out that under the convention a person has to demonstrate an individual fear of persecution, whereas in many of those countries the fear is endemic among large sections of the population. However, it must apply to particular groups within the community for them to be eligible either for refugee status or exceptional leave to remain. That distinction is an artificial one and there is no real difference between those in one category and those in another. It is impossible therefore to understand why the Government should deprive one group of eligibility to asylum and yet backdate benefits in full to the date of the passing of the Act for those in the other group. The division of asylum seekers into two groups is incomprehensible, illogical and immoral. I hope that your Lordships will not accept it.

Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure where the argument of the noble Lord, Lord Avebury, leads us. I believe that it would widen the criteria for refugee status. He contends that we ought to allow more people to have refugee status than the seven out of 100 that we do. I do not know how he comes to that conclusion. We apply the UN Convention test of whether or not the person before us ought to be declared a refugee. That is the test we have signed up to in the international agreement. However, we have decided that it is too harsh simply to divide people into those who pass the test and become refugees and those who fail it. Therefore, although we are under no international obligation to do so, we have introduced exceptional leave to remain. By and large, ELR operates in respect of those countries where there is serious trouble. I believe that the noble Lord, Lord Avebury, accepts that. If one has regard to the figures relating to Somalia--where I am sure all noble Lords will accept there is serious trouble--in 1995 a very large number of people were given exceptional leave to remain. They may not pass the test under the UN Convention, which is an individual fear of persecution, but there is no doubt that there is such bedlam going on in such countries that it is humane and decent for us to give them exceptional leave to remain. Somalia is one such country; former Yugoslavia has been another. However, people are beginning to return to Bosnia. They have been given exceptional leave to remain in this country. We hope that the situation has changed sufficiently for them to be able to return, if not to their own villages, certainly to their homeland. The other country in that category last year was Afghanistan. Those three countries accounted for the great majority of the exceptional leave to remain category. That category is quite different from refugees. We do not believe that we are under an obligation to treat both categories in the same way. Refugees are accorded specific rights under the UN Convention and we ensure, as we should, that those rights can be exercised. For that reason, refugees automatically

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receive benefits. Having read the judgment of the Court of Appeal, we concluded that we should backdate refugees' benefits to the point when they first claimed, if they were in-country applicants and did not initially receive benefits. The granting of exceptional leave to remain is quite different from the grant of refugee status. It is a discretionary concession made by the United Kingdom Government over and above our obligations under the UN Convention. It is intended to address circumstances not covered by the convention in respect of which some discretion ought to be exercised. The right to remain, which exceptional leave gives, is not identical to that given to refugees. ELR is granted for one year in the first instance. It may then be renewed for a further two periods of three years. That provides a total of seven years on three renewals before settlement is considered. An individual must pass three reviews at one year, four years and seven years before he or she can be considered for settlement. Refugee status is awarded for four years. At the end of that period settlement can be applied for. I do not believe that the two can be equated. The award of exceptional leave is made at the point when the person is refused asylum. When the individual has been refused asylum we then look at the case. It is established, first, that the individual does not meet the criteria set out in the UN Convention and therefore is not, as claimed, a refugee. Consideration is then given to whether or not the individual should return to his or her own country. I have explained why we decided that refugees who appeal should be treated in the same way as our own citizens and benefit should be backdated for those who succeed. But when individuals who have been given exceptional leave to remain appeal--as some do because they want refugee status--or those who have been denied both ELR and refugee status appeal, they do so against the decision not to grant refugee status, not against the decision to refuse ELR. The critical matter is the refugee test. If at the end of the appeal system they are not found to be refugees, as happens in 97 cases out of 100, we do not see any case for retrospective payment of benefit. If the case is then sent back to the Home Office because the adjudicator believes that perhaps the department ought to look at the matter again, the Home Office may decide to exercise its powers and grant ELR. Grant of exceptional leave to remain ensures that a person can stay in the UK. We give them access to benefit at the same rate that applies to UK citizens, but it does not make them refugees. I believe that this amendment pushes the concession that I have made a bit too far. The amendment would equate refugee status with exceptional leave to remain. I do not believe that the two can be equated. The consideration by the Home Office and the appeal process are based on the test of refugee status or not. In that regard, we fulfil both our humanitarian and United Nations obligations. When someone is found not

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to have refugee status we are prepared--as it were, off our own bats--to consider whether the individual ought to be given exceptional leave to remain.


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