House of Commons Hansard Debates for 13 Nov 1991

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referred to time and again by Ministers to justify what they are proposing tonight and to encourage and cheer the crowds at the Tory party conference.

The question is, what system do we put in place to ensure that claims for asylum are properly dealt with in accordance with our international obligations? Such a system is possible, but the Government have not proposed it. Under the Government's proposals, there is a substantial risk that individuals will be returned to torture, or even death in some cases, because the Government's approach is simple and cynical--it is to make it more difficult to apply for asylum and far easier to reject claims without full and proper consideration.

The Home Secretary has repeated time and again that there is a new right of appeal before removal for all applicants refused asylum. He said that in his press release, he said it today, and he has said it on many occasions. That statement is simply not true. On 2 July, when the Home Secretary made his statement to the House heralding the Bill, he said that there would be a new fast-track system. We understood that it would apply only to some asylum seekers. It appears from the Bill that it applies to every asylum seeker, because all appeals would be handled in the same way.

At the moment, applicants for asylum in the United Kingdom have a right to appeal. Now no one will have a right to appeal. Instead, all applicants will have only the right to apply for leave to appeal, which is quite a different matter.

Under clause 4, if people appeal they risk losing their existing rights of limited stay under the Immigration Act. That is clearly a disincentive to apply. For example, I refer to students from Croatia who are currently in this country on study visas. They would have to weigh in the balance whether to apply for asylum--if they believe that, if they return to Yugoslavia or Croatia, they will have a genuine fear of persecution--in the certain knowledge that, if they lose that claim for asylum, they will lose also their right to remain in this country because of the way in which the Bill is phrased.

Applicants have two days to lodge an application for leave to appeal. That time limit expires on the day after posting. Knowing the postal service in some areas, that should certainly dispose of several claims without any examination.

In addition, the special adjudicator will have only the material that the Home Office wishes the special adjudicator to have. The initial interview that the asylum seeker gives is absolutely crucial. Those are the facts on which the adjudicator will base his decision, yet asylum seekers will not know what is in the initial statement because they will not have an opportunity to see what is being said about them. Immediately, the asylum seeker is at a disadvantage. He will not know what the case is against him- -rather like the people who were detained by this country during the Gulf war. In addition to that, under schedule 2, the adjudicator must determine all other claims in respect of immigration matters that may be outstanding. What does the adjudicator have to consider? That point is important in the light of what the Parliamentary Under-Secretary of State attempted to establish in interventions during the speech of my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley). The adjudicator has to establish whether the applicant has an "arguable claim" before he decides

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whether the applicant will have leave to appeal. In deciding whether he has an "arguable claim", he has to look at everything that the Home Secretary is entitled to consider before deciding whether someone should be granted asylum. It is no use the Parliamentary Under-Secretary of State shaking his head. That is what the Bill says. Therefore, in deciding whether there is an arguable claim, the special adjudicator has to look at the criteria set out in the draft immigration rules. He has to see whether the applicant failed to apply forthwith upon his arrival in the United Kingdom.

As the hon. Member for Broxtowe said, there may be many reasons why the full facts were not disclosed. The applicant may have left a difficult situation. He may well be in a state of shock and there may be other good reaons why he did not place his full story before the immigration officer at his interview at Heathrow, Dover or any other port of entry.

An applicant could also be faulted on the ground that he or she failed to make a prompt and full disclosure of the material factors, but who is to judge what those material factors are? Even after that interview, the asylum seeker has no right to know what material factors the immigration officer considered important. This is where the relevance of obtaining proper legal advice from the start becomes important. If an individual has not been properly advised, he or she is in no position to judge what is a material factor that should be disclosed.

Similarly, if an applicant has destroyed, damaged or disposed of his passport or other documents, that will be held against him. What would the Government have said to a Jewish refugee fleeing from Nazi Germany who arrived in this country with forged documents? According to the Bill, that person should have had proper documents in the first place and, if approached by an SS officer, should have said, "Yes, I am fleeing from Nazi Germany." Clearly, that is nonsense. As some Conservative Members have said to their credit, many genuine asylum seekers coming to this country have had to destroy their documents to escape persecution.

The issue of whether, after lodging his claim, an applicant has undertaken activities in this country that are calculated to enhance his claim would also be considered. Again, who is to judge whether those activities were calculated to enhance the claim? Similarly, who is to judge whether the applicant could have moved to a safer area of his own country? Are we suggesting that someone who claims that he was persecuted in the northern part of Sri Lanka could have moved to the southern part? How can the immigration officer judge that? Immigration officers are not qualified to do so and do not have intimate knowledge of each and every country that produces asylum seekers.

Under the Bill, the scope for making mistakes--no matter how innocent--is widespread. It would be far better if the asylum seeker could be properly advised and knew exactly what was being said about him and what information was being given to the special adjudicator. That would help to ensure that we do not risk returning somebody to a country without a proper examination of his or her case.

As my right hon. Friend the Member for Sparkbrook has said, some of our greatest concern centres on the fact that the actions of other people, whether acting on behalf of the asylum seeker or not, will be taken into account when assessing the applicant's credibility. I hope that the

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Minister will tell us what other branch of the law contains that feature. Under the law of this country, it is usually accepted that we are held responsible for the consequences of our own actions. It is completely novel to say that someone should be convicted or blamed for something that has been done by somebody else, even if that action is not supposed to be on the other person's behalf. That proposal is particularly objectionable and should be removed. When we consider the position of the asylum seeker, it is essential that we realise that, unless he knows exactly what has been said against him and makes representations accordingly, he will be at a great disadvantage. He cannot make representations in the dark. He must be told what has been said against him, so that his case can be fairly and properly put. At the very least, an applicant should see the case against him. Better still, he should be allowed representation so that his case can be properly and rigorously examined. That would also serve to improve the quality of the administration and decision-making from the start.

he asylum seeker's difficulties start before the appeal stage has even been reached. We have talked much about the Immigration (Carriers' Liability) Act 1987 and will be talking more about it in Committee when we debate increasing the fines. However, several points must be repeated now. First, the Act has not worked. More people are entering this country and having fines levied against them now than when the Act was introduced. If it was meant to act as a disincentive, it has not worked. It is a sledgehammer which has hurt innocent airlines. Fines have been imposed on people who were never intended to be the subject of such fines. I do not believe that the Government ever intended to penalise the airlines for bringing business men into this country whose passports expired just a week or two earlier, but that is what is happening. British Airways, a reputable airline and one of the world leaders, has been fined £6 million. Was that the Government's intention when they introduced the legislation? Fines amounting to over £33 million have been imposed since the Act was passed. It is not even an efficient system, because £16 million is uncollected. The legislation has not worked. The Act discriminates against the genuine asylum seeker. Such an asylum seeker cannot obtain a visa for asylum. He certainly cannot go to the British embassy and throw himself on the mercy of its officials in the country in which he fears persecution.

Both Opposition and Conservative Members have said tonight that airline staff have in effect been made into immigration officers. They may be qualified to say whether someone has a valid ticket, but in most cases they are not qualified to judge whether the visa is correct or the passport is a valid document. The Government ought to reconsider the Immigration (Carriers' Liability) Act 1987. Of course, we all want to stop people who should not be carried into this country, but the Act simply does not work.

The Government should consider the commercial implications for Heathrow of clause 7. If we want to encourage growth in the number of passengers passing through Heathrow, is it wise to require transit passengers, who do not want to enter Britain, to have a visa? Surely,

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if we want to build up Heathrow, that clause should be reconsidered. I should be interested to hear what the Department of Transport has to say about the matter, if, indeed, it is still in the business of promoting Heathrow.

Mr. John Carlisle : The hon. Gentleman's thesis that airlines should be allowed to build up their passenger numbers regardless of where people come from is interesting. If the Labour party were returned to power, would it repeal the Immigration (Carriers' Liability) Act 1987 ? Would a Labour Government not impose any fines on airlines that brought in intending illegal immigrants ?

Mr. Darling : The Act is in great need of overhaul because it is not working. I repeat that it seems ridiculous to discourage airlines from bringing people to Heathrow with a view to taking them elsewhere in Europe or the world. That would be the result of clause 7. The proposal to withdraw legal aid and make UKIAS the sole provider of legal advice and assistance seems to fly in the face of the Government's philosophy. They tell us that they believe in freedom of choice. Yet they will deny people the right to choose what representation they have. As my hon. Friend the Member for Leicester, East (Mr. Vaz) said, that applies to not only asylum seekers but those who seek advice on immigration matters.

The Government tell us that the private sector is efficient, yet they seek to remove the possibility of solicitors and counsel providing advice under the legal aid advice scheme. No saving is gained for the Treasury. It is clear from its letter to the Minister that UKIAS does not believe that it could provide the service that is currently provided. It is regrettable that the Under-Secretary of State saw fit to write to UKIAS threatening it that unless it accepted the Government's proposals there would be a question mark over the funding that it already receives.

The Government must answer the point raised by my right hon. Friend the Member for Sparkbrook. He said that the Commission for Racial Equality has written to the Government saying that there was a question mark over the proposal to withdraw legal aid in view of the Government's obligations under the Race Relations Act 1976. On clause 3 and the proposals on housing, I shall content myself by saying that it is not enough simply to make it more difficult for asylum seekers to be housed. If we grant people leave to remain in Britain, they have to be housed somewhere. We should tackle that problem. The root cause of the problem, the resentment and the problems referred to by my hon. Friend the Member for Newham, North-East (Mr. Leighton) is that there is not enough public low-cost housing. That problem was caused by deliberate Government policy throughout the term of their office. It is a major problem for the London boroughs in terms of both housing and education. The Government should consider the problem rather than simply making it more difficult for these people to be housed.

The hon. Member for Broxtowe made a good suggestion about fingerprinting. Where there is suspicion perhaps the proposal ought to be considered. As I understand it, only applicants from one or two countries are giving rise to a problem ; it is not universal. Safeguards must be in place to ensure that the system is not abused and that the countries that people are fleeing from are not given information which would make their persecution more likely.

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I draw the attention of the House to the fact that, following the detention of various Iraqi nationals during the Gulf war, I discovered that the names of all the detainees were passed to the Red Cross and thence to the Iraqi authorities, who now have a list of everyone that we detained who chose not to go back to Iraq. Clearly that puts them in great difficulties. The Government should think hard before they allow the development of a system whereby countries that we all accept have brutal regimes have a list of their nationals who chose not to return to the country because of the nature of the regime.

There is no dispute about the fact that there is a problem and that it needs to be dealt with. The dispute between us concerns the proposed solution, which we do not believe will be effective, workable or fair. The Government's position is simple and cynical and is designed to exclude as many as possible at the earliest opportunity. It is contrary to the United Nations convention. There is risk that genuine asylum seekers will be bundled out of the country to face torture or death. We cannot turn our backs on what is undoubtedly a serious and growing problem. The Government have failed to do it and are apparently content to wallow in rhetoric. That is regrettable and that is why we shall be voting for our amendment and opposing the Bill.

9.41 pm

The Parliamentary Under-Secretary of State for the Home Department (Mr. Peter Lloyd) : The debate on a range of issues that lie behind the Bill has been full, at times passionate and occasionally acrimonious. As my right hon. Friend the Home Secretary said in his opening speech, asylum is a complex subject. The pressures that induce people to leave their country and seek it are varied. The motives for choosing a particular country-- often on the other side of the world--in which to claim asylum are mixed.

In answer to the hon. Member for Edinburgh, Central (Mr. Darling), I do not believe that the motives of the majority of those who claim asylum are reprehensible. However, the claims of the majority of those seeking asylum here during the past few years--and of the cases that we have determined-- were unfounded in United Nations convention terms. The hon. Member for Edinburgh, Central and a number of other hon. Members asked me why so many have had exceptional leave to remain, as only 24 per cent. of the cases in the past few years have been found to be genuine asylum seekers in United Nations terms. The fact is that we give exceptional leave to remain because it would be inhumane to send some people, such as the Croatian that the hon. Member mentioned, back to their country at this time, even though they may not have made a claim of persecution. In some cases, because of our long waiting list, people have been here too long--they have married, put down roots and have children in school--and it would be unreasonable to send them back. I am afraid that I have to confess that we allow a substantial number of people to remain simply because we have not had the staff to pursue their claims to remain through the various hoops available to them.

Mr. Darling : The Government had an open door policy, then?

Mr. Lloyd : It may well be the case that we should have had more staff but I willingly accept that the tenfold

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increase in the number arriving has overwhelmed our resources. I do not think that the hon. Member for Edinburgh, Central, his hon. Friends or the majority of my hon. Friends would say that the Government were wrong, rather than giving no status to people who have been in this country for a number of years, to have given them exceptional leave to remain. That is how that category is made up. They are not genuine asylum seekers, but a variety of different people with a variety of claims to be here and reasons why they are.

Mr. Darling : The Minister has made exactly the point that I was making--that, in effect, a tiny minority has claims that are unfounded and without merit. He rightly said that we grant exceptional leave to remain to a number of people if it would be unjust to return them, perhaps to a civil war or something like that. As I understand it, the Home Secretary has said that he means to cut down on exceptional need to remain. What will we do when someone misses out on asylum but clearly has a case, albeit one that falls short of asylum, which is not bogus?

Mr. Lloyd : Each case is considered on its merits. There are at least two categories. With the speedier decision-making that the extra staff make possible, in which the Bill assists, people will be able to have no said to them very properly.

Beyond all the rarefied discussion of these fundamental forces, beyond the political point scoring and the political footballs, many of which have been kicked around this evening, there remains the overwhelming problem of coping humanely and fairly with the constant flow of individual human beings--now 50,000 a year, which is 10 times more than three years ago. No responsible Government could ignore that growth. No responsible Opposition could, either--yet I have heard few thoughts from them tonight about how to deal with that effectively.

We cannot ignore that growth, if only because the machinery and procedures adequate to manage 5,000 are entirely inappropriate for 50,000 and more. Despite the hard words exchanged across the Chamber from time to time this evening, it is plain that there is complete agreement on both sides of the House that those who arrive here with a well-founded fear of persecution should find a safe haven. On this side of the House and, I suspect, on many parts of the Opposition Benches there is equal recognition, although unspoken, that those who do not have such a well-founded fear, some other compelling compassionate reason which justifies their remaining or another legitimate claim to stay, should return to their country. If an asylum claim that is not justified under the United Nations convention is to be the means of obtaining settlement in the United Kingdom, we need at the very least to explain, particularly to the minority communities legitimately settled here, why their friends and relatives who would like to come and join them are not allowed to do so because they told the truth when they made their applications, whereas others who are prepared to make an unfounded asylum claim can remain indefinitely. There is no justice in that.

I listened to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and it was plain that he did not understand the Bill. I had no idea whether he saw the

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tenfold rise in numbers applying as a problem to be addressed and, if so, how he would deal with it. His was an exercise in misinformation and complacency.

The Bill and the rules that will accompany it are essentially practical. They aim to establish a working system that can cope with arrivals on the present scale. We need to be able to identify and give asylum promptly to those with genuine claims. It is plainly unfair if they are obliged, as at present, to live in uncertainty for many months or years. We need to be able to determine accurately and fairly those with unfounded claims. Unless there is a special compassionate feature, such as the one given by the hon. Member for Edinburgh, Central, we need to return them home before they have begun to establish themselves here, making their eventual removal more difficult for us and even more unwelcome for them.

There is no serious dissent from the general proposition that we should have a system which combines a thorough examination of all individual claims, a clear exposition of the criteria against which they are being assessed, all proper speed and then a clear decision, whether positive or negative, and an effective right of appeal before removal for those whose claims have been rejected. Obviously, there is room for debate about the means of achieving those objectives and how accommodating our criteria should be.

Because we want the debate to be a real one, we published with the Bill the draft immigration rules which will follow its successful passage, so those rules can be discussed at the same time as the Bill and, if and where necessary, improved. We have also published for consultation the draft asylum appeals procedure rules. The Lord Chancellor has made it clear on the front of that document that they have been issued before being finalised so as to facilitate discussion. I want to dwell upon the draft immigration rules because most hon. Members have mentioned them.

The draft rules make explicit the clear exposition of the criteria against which cases are assessed. These relate to matters of credibility. A case that is considered thoroughly is looked at in the round and all the relevant factors are taken into proper consideration. When it comes to deciding what affects credibility, the operative word is "may". If an applicant has a good explanation for his claim it may, far from harming him, enhance his credibility. There may be occasions when it is quite right or entirely understandable that an asylum applicant did not make his claim until he had been here for some time. For others, however, it will be plain that they made their asylum claim to extend their stay here only when they had failed to prolong it by other means.

I understand why hon. Members paused for thought when they first read the draft immigration rule relating to a person arriving with no papers. There could be a totally innocent reason why someone arrived with no documents. When papers are destroyed deliberately, however, as they are in half of the cases of those claiming asylum at the ports, apparently to conceal the identification of the claimants and where they come from, that must adversely affect their

credibility--unless they have a convincing explanation. It will affect their credibility not least because

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the United Nations enjoins asylum seekers to help the authorities by providing all the relevant information to assist in establishing their claim.

Mr. Darling : What is the objection to showing the asylum seeker the completed initial statement and the reasons for the refusal? At least he could then see what was said against him and, if necessary, make representations about that.

Mr. Lloyd : There is no objection, and that is exactly what we are doing. On refusal, the failed applicant will be given the reasons why and receive a copy of the papers that will go to the adjudicator. What the hon. Gentleman wants, he will get. Not everything is set down in the rules, but it is the practice to provide those papers. [Interruption.] Opposition Members seem to be disappointed.

Mr. Darling : The Minister is a reasonable man and he has shown even more reasonableness than I had expected. If he is now giving us a commitment that the reasons for a refusal will be made available to the applicant, that is welcome. I should be grateful if the hon. Gentleman will confirm that that is the Government's intention.

Mr. Lloyd : It is our practice and also our intention.

Another rule that worried people on first reading, and I can understand why, is the rule relating to political activity in this country. My right hon. Friend the Home Secretary has already dealt with that issue. I accept that political activity in this country could undermine credibility, but it might just confirm credibility. Given that the rule has caused so much concern, I will repeat our case. The operative word is "may". Political activity here would undermine the credibility of a claimant only if it was designed merely to enhance a claim or to construct one that did not exist. Those who have genuinely fled from persecution and who carry on normal, non -violent political activity and demonstration here have nothing to fear.

Paragraph 7 of the draft immigration rules relates to untruths by agents. That, too, has been raised many times tonight. Unless an applicant has a satisfactory explanation, his credibility will be reduced if untrue claims are made on his behalf by his agent or representative. That is the position now. Staff at the Home Office who give fair and full interviews to applicants must look at all matters which reflect on the claim being made and on the credibility of the individual. The only difference is that we are setting that fact out clearly in the rules so that people know.

Paragraph 8, which enables some applications to be considered in a group, was raised by several hon. Members, particularly the hon. Member for Caithness and Sutherland (Mr. Maclennan). Cases will almost always be considered individually. Paragraph 8 provides that, when an applicant is part of a group of individuals all making the same claim which is clearly unconnected with United Nations convention criteria, the group may be refused collectively. It deals with the occasional situation when a holiday party arrives on a charter flight and claims asylum en bloc. The rules make it clear that an individual who can show that his or her claim is distinguishable from the rest of the group must have it heard and he or she will be treated individually.

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The procedure rules were also raised by many hon. Members on both sides of the House. The major purpose of the Bill is to extend appeal rights to all asylum seekers. There was no such universal right when the Labour party was in office. The Bill provides for the right to apply to and have papers considered by the adjudicator. If there are arguable points, the rules are clear. The case must be considered orally. I have no doubt that most cases will be considered in that way, because the threshold is very low--lower for leave to appeal than in most other parts of our judicial system such as the criminal courts. I doubt whether the right hon. Member for Sparkbrook would say that there is no right of appeal in criminal cases. Yet the Bill is on all fours with that-- indeed, it is rather more liberal. Nevertheless, there must be a filter, as there is in the criminal courts, to ensure that the appellate system is not overloaded by those who enter Britain from a third safe country to which they can return if they manifestly have no claim to asylum here. For example, my right hon. Friend the Home Secretary mentioned a Ugandan who came here from Italy, where he had spent four years. Another example was a member of the governing party in his own country who fled here for asylum, saying that his colleagues were rude and inconsiderate. I understand why he chose this country, where the governing party is never rude, even when provoked, and unfailingly considerate.

Mr. Vaz : Will the Minister give way?

Mr. Lloyd : No. I shall not be able to complete my remarks anyway. The Bar Council believes that there must be a fast track. I was interested to see its views. The UNHCR director for international protection, quoted by my right hon. Friend the Home Secretary, said in May this year that in western Europe unfounded cases clog the system. Nevertheless, we are prepared to examine the arrangements in Committee with an open mind.

Mr. Vaz : Whose open mind?

Mr. Lloyd : Mine--I doubt whether there are too many among Opposition Members.

The draft rules for the asylum appeals procedure were issued unfinished so as to aid discussion. One element has caused a great deal of discussion-- the two days allowed for an applicant who has been turned down to notify the adjudicator of his wish to appeal and to present the kernel of his or her case. I am sure that many cases will be able to keep to that timetable, but I see difficulties in many others. We shall be particularly interested to hear the views of Committee Members and organisations about what that time allowance should be. The Government want to avoid unnecessary delay, but it is equally their objective that every case with a serious argument for consideration should be heard orally and fully. We are emphatically not introducing an appeal system in order to truncate or bypass it. Many hon. Members, notably the hon. Member for Bradford, West (Mr. Madden), mentioned the availability of green form legal aid for advice, and the proposal to end it in immigration cases. We certainly do not intend to make any change that denies any asylum seeker or immigration applicant full, professional and convenient advice. I commend the Bill to the House.

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Question put, That the amendment be made :- -

The House divided : Ayes 234, Noes 312.

Division No. 7] [10 pm

AYES

Abbott, Ms Diane

Adams, Mrs Irene (Paisley, N.)

Allen, Graham

Alton, David

Anderson, Donald

Archer, Rt Hon Peter

Armstrong, Hilary

Ashdown, Rt Hon Paddy

Ashley, Rt Hon Jack

Ashton, Joe

Banks, Tony (Newham NW)

Barnes, Harry (Derbyshire NE)

Barnes, Mrs Rosie (Greenwich)

Barron, Kevin

Battle, John

Beckett, Margaret

Beith, A. J.

Bell, Stuart

Bellotti, David

Benn, Rt Hon Tony

Bennett, A. F. (D'nt'n & R'dish)

Benton, Joseph

Bermingham, Gerald

Bidwell, Sydney

Blunkett, David

Boateng, Paul

Boyes, Roland

Bradley, Keith

Bray, Dr Jeremy

Brown, Gordon (D'mline E)

Brown, Nicholas (Newcastle E)

Brown, Ron (Edinburgh Leith)

Bruce, Malcolm (Gordon)

Caborn, Richard

Callaghan, Jim

Campbell, Menzies (Fife NE)

Campbell, Ron (Blyth Valley)

Campbell-Savours, D. N.

Carlisle, John, (Luton N)

Carr, Michael

Cartwright, John

Clark, Dr David (S Shields)

Clarke, Tom (Monklands W)

Clelland, David

Cohen, Harry

Cook, Frank (Stockton N)

Cook, Robin (Livingston)

Corbett, Robin

Corbyn, Jeremy

Cousins, Jim

Crowther, Stan

Cryer, Bob

Cummings, John

Cunliffe, Lawrence

Cunningham, Dr John

Dalyell, Tam

Darling, Alistair

Davies, Rt Hon Denzil (Llanelli)

Davies, Ron (Caerphilly)

Davis, Terry (B'ham Hodge H'l)

Dewar, Donald

Dobson, Frank

Doran, Frank

Duffy, Sir A. E. P.

Dunnachie, Jimmy

Dunwoody, Hon Mrs Gwyneth

Edwards, Huw

Enright, D. A.

Evans, John (St Helens N)

Ewing, Harry (Falkirk E)

Ewing, Mrs Margaret (Moray)

Fatchett, Derek

Faulds, Andrew

Fearn, Ronald

Field, Frank (Birkenhead)

Fields, Terry (L'pool B G'n)

Flannery, Martin

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