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Baroness Hamwee: My Lords, I am grateful to the noble Lord, Lord Dubs, for springing to my defence. One of the worlds of difference between the two sides of the House is that the House by its nature is an amateur House and the part-time nature of our role has its own problems. However, we should appreciate the contributions made by those observing the workings of this House and another place from outside and who bring matters to our attention, which is precisely what happened here. In fact, I understand that the department had a copy of the clause and the notes from which I spoke on Monday. I accept that that is not very long when one looks at the amendment in the context of the working of the Law of Property Act 1925--I am not so sure about hundreds of years.

I am not convinced that what the Minister said went to the point of the requirement of the deed. However, I accept that this is something that has been established, though, as I said, probably not working very well, for quite a long time. It is not the sort of thing one would want to alter on the hoof. To that extent, I take the slap over the wrist that came from the Minister.

Earl Ferrers: My Lords, perhaps I can explain to the noble Baroness that I did not want to give her a slap over the wrist. It was a gentle nudge because the noble Lord, Lord Dubs, gave me a gentle nudge a little while earlier.

When I said that the statute goes back hundreds of years, I meant that the current provisions of assignment of land and property go back 300 years to the Statute of Frauds of 1677. That is why I thought it may be a little rushed to alter that.

Baroness Hamwee: My Lords, I accept that this should not be done on the hoof. When there is a circle of us, as soon as someone gives a nudge that nudge will go round and round. I shall not over-react for fear of keeping the nudge going. Nevertheless, it is a serious point. This is not the opportunity to address it, but I hope that the department will take the point seriously and, if it believes that it is worth looking at the law again to bring it up to date, that it will find another opportunity to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 165:


Before Clause 115, insert the following new clause--

Exceptional leave to remain: backdating of entitlement to benefit

(" . Any asylum seeker who is granted exceptional leave to remain shall be entitled to--
(a) housing benefit, and
(b) council tax benefit,
backdated to the date of their asylum application.").

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The noble Lord said: My Lords, I realised that the time was close when this amendment was to be considered when I saw the noble Lord, Lord Mackay of Ardbrecknish, take his place on the Government Front Bench.

I do not apologise to the House for yet again raising the question of asylum seekers and refugees, although I agree that in two Bills going through Parliament simultaneously we have had a lot of debate on the issue. The reason for this amendment is very simple. The Government have already agreed that if an asylum seeker is granted asylum status, he shall be entitled to housing benefit and council tax benefit back-dated to the date of the asylum application. It is clearly an anomaly that that provision has not been extended to asylum seekers who are granted exceptional leave instead of full refugee status.

My understanding is that in every other respect as regards entitlement to benefits and all the other provisions that we discussed during the passage of the Asylum and Immigration Bill and the earlier stage of this Bill, asylum seekers granted refugee status and those granted exceptional leave to remain have been treated in a similar way. Therefore, it is clearly an anomaly that they have been missed out in this respect. I am confident that the Government will feel that this is the right occasion on which to rectify that anomaly. I beg to move.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, as the noble Lord rightly says, we have discussed these matters on a fair number of occasions during the course of both this Bill and the Asylum and Immigration Bill, which is now on its way to the other place. This amendment is interesting in that it introduces an entirely new concept into the income-related benefits. It actually provides that someone should be entitled to benefit simply by virtue of having a particular status. If a United Kingdom citizen seeks housing benefit or council tax benefit, he has to show a liability for rent or council tax and then that he fulfils and satisfies all the other entitlement conditions which apply to those benefits, including income.

A person with exceptional leave to remain under this amendment would gain entitlement simply by having exceptional leave to remain. That would be a most curious way to proceed. I understand that noble Lords opposite seek to refer to our proposals that those granted refugee status should be able to claim retrospective payments to cover periods when they have been excluded from income-related benefits. They seek to extend that proposal to cover those granted exceptional leave to remain. Even if the noble Lord's amendment was couched in more technically correct terms, I am sorry to say to him that it would still be unacceptable.

Perhaps I may explain the rationale which underpins our proposal to make retrospective payments available to refugees. The Government's policy on benefits for asylum seekers, which we shall seek to restore in the Asylum and Immigration Bill, aims to reduce incentives for people to make unfounded claims for asylum. To that end we shall restrict benefits to those who have

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claimed on arrival in the United Kingdom and who have not received a negative decision from the Home Office--in other words, we shall insist that in order to gain benefits under the United Kingdom system, people will have to claim at the port of arrival. If, after consideration, the Home Office decided that they were not eligible for consideration as asylum seekers, they would not then be able to claim benefit during the time they waited for their appeal to be considered.

As your Lordships know, the House took a slightly different view on this matter by a small number, a fortnight ago. Those people who apply at the port or within three days, according to the amendment carried against my advice, would receive benefit not merely up until the point when the Home Office made a decision, but actually beyond that point and during all the time they were awaiting an appeal decision.

Your Lordships will know that my right honourable friend Peter Lilley, the Secretary of State for Social Security, has indicated that it is the Government's intention to ask the other place to overturn that particular amendment which your Lordships passed.

But in a minority of cases, where an asylum seeker is found to be a genuine refugee, we think it is reasonable that they should, in effect, be retrospectively exempted from the measures designed to dissuade the bogus from claiming. Therefore, we proposed and inserted in the Asylum and Immigration Bill that refugees should be eligible for retrospective payments covering periods during which the benefit regulations had previously excluded them from benefit.

That would mean that those people who claimed in country and who were subsequently found to be genuine refugees would be able to have retrospective payments and those who appealed and were eventually found to be genuine--three out of every 100, as it turns out--would be able to have retrospective payments.

This, as your Lordships will recall, puts refugees on a similar footing to United Kingdom nationals who lodge a claim against refusal of benefit. During the appeal no benefits are paid, but if the appeal is successful benefit can be backdated.

We do not accept--as I have explained to your Lordships before--that people who are granted exceptional leave to remain should be treated in the same way. Refugees are accorded specific rights under the UN convention. We ensure that those rights can be exercised. Exceptional leave to remain is a discretionary concession made by the UK Government over and above its obligations under the UN convention. It seems to me entirely reasonable that a person granted exceptional leave to remain should be paid the benefit from the date that the status is awarded.

Tonight, I can see no case for making such payments retrospective to an earlier period. I have been over this argument before. I appreciate that the noble Lord, Lord Dubs, feels that I am making a rather narrow distinction between refugee status and exceptional leave, but we have argued it before and I am not convinced that I should change my position. The position of a refugee--somebody who is granted refugee status--is

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quite different from that of a person with exceptional leave to remain. It is only right that we retain that distinction in that we will pay retrospective benefit to those people who are granted refugee status but that we will not pay it to those granted exceptional leave to remain.

I appreciate that the noble Lord will find my reply disappointing but I suspect he will also find it predictable. I hope that he will feel able to withdraw his amendment.

Lord Dubs: My Lords, I find it disappointing but I am bound to say I have more faith in the Minister than to suggest that I predicted his answer. I appreciate that technically the amendment is somewhat defective, but the Minister directed most of his arguments against the principle. I would simply say this. This is the only occasion on which the Government have made a distinction between benefit entitlement on the part of refugees--people given refugee status--compared with those given exceptional leave to remain.

We are talking of very small numbers because if people are going to be given ELR they are normally given it in response to their asylum claim. Only in isolated cases are they refused asylum. They then appeal and, although refused asylum status, they are granted exceptional leave to remain. It does happen, but we are talking of a handful of cases. I should have thought that the principle was clear--and the sums of money are tiny. We are making a distinction between two groups of people who, in all other respects, are allowed to stay in this country and who ought to have the same rights. It seems to me that the Government are being a bit niggardly about this. It would have been generous to say, "Yes, this is an anomaly", and to do something about it. I am dismayed that the Government do not see it that way. Reluctant as I am to accept something like that, I do not think that I have any choice but to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Clause 115 [Payment of housing benefit to third parties]:


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