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Baroness Blatch: I have an answer to the question posed by the noble Baroness, Lady Seear. I am told that nearly all judicial review applications are heard without the applicant giving oral evidence.

Lord McIntosh of Haringey: I beg leave to withdraw Amendment No. 23.

Amendment No. 23, as an amendment to Amendment No. 1, by leave, withdrawn.

[Amendments Nos. 23A to 28, as amendments to Amendment No. 1, not moved.]

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 29:

Line 62, at end insert--
("( ) A Special Adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it where he concludes that the decision rejecting the claim has not been taken in accordance with the law or any relevant rules.").

The noble Lord said: Amendment No. 29 provides that a special adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it. Special adjudicators, in particular Judge Pearl in giving evidence to the Glidewell Inquiry, have indicated that this is a very important part of their powers and responsibilities. The 1993 Act allows the adjudicator to refer an issue back to the Home Office where there is a conflict of law or a conflict with the Immigration Rules. In practice, it means that the adjudicator believes that the matter has not been considered properly. As I understand it, that provision will still exist in fast-track cases, although such a referral back will be time limited and there will be a restriction on repeated applications for adjournments. That was a matter to which the Minister referred in her most recent answer. The power given to adjudicators to refer back cases to the Home Office has been widely used. I understand that 26 per cent. of safe third country applications (which we will come to consider in Clause 2) have been referred back in this way.

Further, in his evidence to Glidewell Judge Pearl referred to what would happen if the power to refer back cases was denied. He dealt with that matter again when the case of Dr. al-Mas'ari was referred to him. On that occasion he said that if there were no power to refer the matter back, there was a possibility of the case being left in limbo, and nobody would be able to decide whether Dr. al-Mas'ari, or somebody like him, should be granted refugee status. I suppose that a part answer is that he may be given exceptional-leave-to-remain status. That is what the Government have done, although I understand that it is limited to a period of four years.

Nevertheless, on any view of the role of the special adjudicator it must be possible for him to say, not just that in his view the decision is correct or clearly

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incorrect in that the appeal should not be allowed, but that possibly insufficient evidence has been adduced either in the original application or the appeal and the Home Office must look at the case again. I would have thought that that was an open and shut case--which is not the case for appeals themselves--and that it would be right to include the provision as proposed in Amendment No. 29. I beg to move.

Baroness Williams of Crosby: I rise to support the noble Lord, Lord McIntosh. I draw attention to one factor upon which he touched. At an earlier stage I withdrew an amendment that would have removed sub-paragraph (6) in Clause 1. That sub-paragraph dealt with the disappearance of the Immigration Appeal Tribunal as a final point of appeal on a matter of law. As I understand it, it will no longer be available to those on the fast track. The amendment moved by the noble Lord, Lord McIntosh, would give the special adjudicator the right to return a case to the Home Office on the ground that there might be a misdirection in law. Given the disappearance of the Immigration Appeal Tribunal in these cases, it seems to me to be absolutely vital that it should be possible to mount an appeal on a point of law.

Indeed, it is striking that when in the past special adjudicators have referred cases to the Immigration Appeal Tribunal, in a great majority of those references the adjudicator's case has been upheld by the tribunal. Indeed, according to the Home Office's own statistics for 1995, in 1994 74 per cent. of appeals on a point of law were upheld as a result of a special adjudicator's reference back for rehearing on a point of law.

I feel strongly that unless we are to try to put back the Immigration Appeal Tribunal under Clause 1-- I appreciate what the Minister has said about trying to speed up endless procedures--it would be wise of the Government to concede the amendment, which would mean that a point of law could be looked at. That is clearly not something that adjudicators are normally qualified to do, as distinct from the Immigration Appeal Tribunal, or in this case the Home Secretary and his colleagues. I commend the amendment to the Government, and hope that they will consider accepting it.

The Lord Bishop of Ripon: The Minister will remember that in a recent meeting we had with the Home Secretary the issue of referral back was raised. My understanding at that time was that there was a disagreement between the noble Baroness and the civil servants over the effect of the Bill. I asked whether the removal of the power to refer back meant that an adjudicator would have to arrive at a decision on the substantive case.

The noble Lord, Lord McIntosh, referred to the possibility of cases being left in limbo. My understanding was that adjudicators would be required to make a decision on the substantive case. If that were to be the situation, the difficulties would be considerable because the adjudicators would not have before them sufficient evidence. An adjournment would be needed. There is a possibility of the system being clogged up

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due to that rather than being freed in the way the Government hope. I hope that the Minister may be able to clarify the points being made and answer the question as to whether adjudicators will be required to make a decision on the substantive case in such circumstances.

Lord Avebury: I should have preferred the noble Lord, Lord McIntosh, to go a little further in the amendment. As he knows, in the case of Dr. al-Mas'ari, to which he referred, the matter was referred to the Secretary of State by the special adjudicator on two occasions but no decision was taken on the substantive application for asylum. Initially, when Dr. al-Mas'ari came here the proposal was to return him to Yemen, the last country from which he had travelled, because, as the Committee may remember from the previous occasion when we touched upon this case, he was originally imprisoned and persecuted in Saudi Arabia. He escaped across the border to Yemen where he obtained a travel document. He came here from that country.

The first decision that had to be made by the special adjudicator was whether Yemen was a safe country to which to send him back. When the special adjudicator decided that it was not, he made a recommendation to the Secretary of State that he should consider the substantive application for asylum, but the Secretary of State failed to do that, and claimed subsequently to have lost the papers. I will leave it to the Committee's judgment whether to believe that.

When another adjudicator decided on the question of Dr. al-Mas'ari's proposed removal to Dominica, he, too, recommended that the Home Secretary should consider his substantive application for asylum. Instead of that, as the noble Lord, Lord McIntosh, pointed out, the Secretary of State, in his wisdom, decided to give him four years' exceptional leave to remain which could be renewed for an indefinite period.

Not only should the special adjudicator's power to remit a claim for asylum be restored by an amendment to Clause 1, the amendment should have provided that in cases where the special adjudicator makes such a reference to the Secretary of State, the latter would have an absolute duty to make a decision on the application for asylum and should not have the power merely to grant exceptional leave to remain or to make some other decision at his own discretion. Surely if we are providing the special adjudicator with these powers, it means that the Secretary of State must do his duty and not slide out of it by the means he has chosen to use.

Baroness Blatch: Perhaps I may say, first, to the right reverend Prelate that I remember the meeting well. It was a useful meeting. It was not a disagreement between myself and the Home Secretary; it was that I got it wrong, and on that occasion the Home Secretary got it right. We have since confirmed in a letter to the right reverend Prelate that his understanding is correct.

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The Government believe that adjudicators should in future in all cases either allow or dismiss the appeal. That is where there seems to have been some misunderstanding, as I have listened to the debate on the amendment. Many people are judging the situation as it prevails at the moment and not as it would be if the Bill were on the statute book. The Bill would therefore abolish the option of referral to the Secretary of State which is currently available in certain circumstances because, as I have said, the adjudicator would either allow or dismiss the appeal.

Referral back adds to delay. In effect, the consideration of the case has to start again. Unless he grants asylum, the Secretary of State has to issue another letter setting out his reasons for refusal, and a second appeal then has to take place. That runs counter to the whole thrust of our proposals which are aimed at speeding up the appeal system.

Referral back to the Secretary of State is entirely unnecessary. It has to be remembered that all cases covered by Clause 1 will have been substantively considered by the Secretary of State. It is important to underline that. It is true that Clause 1 will extend the circumstances in which the Secretary of State can issue a certificate if he refuses an asylum claim. But that does not mean that the Secretary of State is excused from the obligation to consider the asylum claim substantively. He cannot issue a certificate until he has done so. So the applicant will still be interviewed. The grounds for his claim will still be assessed. If asylum is refused, the reasons for refusal will still need to be set out in a letter.

It follows, therefore that the adjudicator should have before him the information he requires to decide whether the applicant qualifies for asylum. He will have the interview notes, the Secretary of State's letter of refusal, any additional grounds subsequently submitted with the appeal and the presenting officer's response to those additional grounds at the hearing. In some cases, the grounds for appeal, if introducing significantly new issues, will have elicited a further written response from the Secretary of State. All of that material will be before the adjudicator in Clause 1 cases. If, exceptionally, the adjudicator requires further comment or information from the Secretary of State, it is open to him to adjourn for that to be provided. The Bill will not change that.

It has been suggested that the option of referral back to the Secretary of State is needed to cater for cases where the adjudicator finds that the Secretary of State's initial decision was legally flawed or failed to comply with the Immigration Rules. That argument reflects a fundamental misunderstanding of the adjudicator's role. Unlike, for example, the Court of Appeal, his role is not limited to reviewing the validity of the initial decision. And he is not restricted to the information which was available at the time that decision was taken. On the contrary, his task is to form his own view of the validity of the asylum claim, taking account of all available information, including any which has come to light since the initial decision was taken. That is a well-established principle, and it would be damaging to change it now.

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So if the adjudicator finds that the initial decision was technically or legally flawed, he should nevertheless go on to form his own view of the validity of the asylum claim and either allow or dismiss the appeal accordingly.

Some may think that cases will be left in limbo if they cannot be referred back to the Secretary of State. There is no such risk. As I have already said, the issue before the adjudicator in all Clause 1 cases will be whether the appellant qualifies for asylum. If the adjudicator allows the appeal, he will be overturning the refusal of asylum. If he dismisses the appeal, he will be upholding the refusal of asylum. Either way, therefore, there will be no question of the case being left in limbo. The third option of referral to the Secretary of State will therefore be unnecessary.

The noble Lord, Lord McIntosh, touched briefly on third country cases. I too hope that we can leave that matter until we discuss it later tonight in the course of considering other amendments. It is quite wrong to suggest that allowing the appeal will leave the case in limbo. If the asylum seeker is still in this country, the asylum claim will automatically be referred back to the Secretary of State. The claim will still be outstanding and the Secretary of State will have to deal with it. In most cases, however, the successful appellant will already have been removed to the third country. Again, I shall deal with that point in more detail when we discuss later amendments.

Reference has been made to Judge Pearl saying that allowing a third country appeal leaves it in limbo. It is difficult to answer because points have been made in the debate. Perhaps Members of the Committee will forgive me if I leave that matter until later. It was mentioned that Judge Pearl told the Glidewell panel that Clause 1 will be counterproductive. What Judge Pearl is reported to have told the Glidewell panel is that the appellate authority's intake currently exceeds its output and that while that remains the position the need to give priority to increased numbers of certified cases will lead to longer waiting lists for other appeals. I know that that view is held by the right reverend Prelate.

We listen carefully to the advice of the chief adjudicator, which is important. He has presided over a very remarkable expansion of capacity and output since his appointment, with the assistance of a major investment of resources which is continuing. However, it is not the Government's position that wider use of the accelerated appeal procedure will of itself reduce overall delays, but we are convinced that it is a necessary part of a wider programme of measures. The package also includes major additional resources now being invested in the appeal system and the improved procedural rules on which my noble and learned friend the Lord Chancellor has just published proposals after consulting the chief adjudicator.

It is important to send a deterrent signal that unfounded claims will be dealt with speedily. If fewer such claims are thereby made, overall delays will be reduced and genuine refugees will then receive asylum more quickly. I hope that the amendment will not be pressed.

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6 p.m.

Lord McIntosh of Haringey: It is clear where the disagreement lies. None of us is in favour of delay and we shall support proposals which will genuinely reduce delay. However, the danger arises when delay is in conflict with the interests of justice. After listening carefully to the debate I believe that we may have reached the point where there is a conflict between the interests of justice and delay.

I look again at the wording of my amendment and find it somewhat disingenuous. It states:

    "A Special Adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it where he concludes that the decision rejecting the claim has not been taken in accordance with the law or any relevant rules".

I suggest to the Government that it might well be that the alternative will be the case. In other words, a special adjudicator who does not have the power to refer a claim back to the Secretary of State when he considers that it has not been taken in accordance with the law or any relevant rules--that is, that the procedures were improper--may be tempted to say, "I cannot dismiss the claim because, clearly, the procedures were improper, but if I cannot refer it back I shall have to allow the claim". The Government might well find that at the end of this exercise they are getting more successful claimants not necessarily because their claims are justified but as a result of the restrictions placed on the special adjudicator to try to clear up inconsistencies or potential improprieties in the procedures for the claims.

The whole of the Minister's argument was about the substantive consideration of the claim and I accept that that has not changed. She did not refer to the initial appeal and to the fact that the fast-track appeal procedure is bound to involve some risks to the quality of evidence and the quality of consideration. There is not much point in doing so unless one is cutting some corners. She appears to believe that somehow the combination of the substantive application procedure and the fast-track procedure will produce a result which is perfect in all cases and in which there can be no improprieties. That is not a criticism of the immigration department staff or the adjudicators, but surely in human nature errors will be made. I refer to errors of procedure and of consideration of facts, and to all kinds of errors in the procedure which may become apparent to the special adjudicator. I suggest that, as a result of denying the power to refer back, the Minister will find that there will be more successful applications, some of which may not be fully justified.

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