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Baroness Williams of Crosby: I apologise for interrupting the noble Baroness. However, the case that I raised is in direct contradistinction to what she says. The young man currently in detention has two very senior medical consultants arguing that he is not 18. They have argued that for two years. The young man is still in detention and, if they are correct, he cannot even now be 18, having been kept in detention of one form or another for two years.

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The noble Baroness gives the Committee assurances to which that case seems to be in complete contradistinction.

Baroness Blatch: I hope that the noble Baroness will hear me out completely before we discuss specific cases. Of course I shall take away a particular case, if the noble Baroness wishes to write to me about it, and ensure that it is properly investigated.

As I said, it cannot be right to make unsubstantiated claims. Where that evidence is satisfactory, we will accept the applicant as a minor, as we have done in a number of cases. But it is entirely right that the burden of proof should remain with the applicant. For the moment, I rest that case, but I shall come back to the issue.

Amendment No. 45 would prevent any child under 18 who claimed asylum in his own right, whether accompanied or unaccompanied, from being removed to a safe third country. The whole debate has been about unaccompanied children. Not a single word has been prayed in aid of accompanied children. This would make it impossible to reunite a child with his own family if the family were in a safe third country. The amendment is in conflict with UNHCR guidance which states that family reunion should be the first priority for a child. I am not aware of any recent case where we have removed an unaccompanied asylum applicant aged under 18 to a safe third country. We would not take such a step unless we had confirmation that suitable reception arrangements were in place in the third country. It is nevertheless right that we should have the option to remove children under 18 to safe third countries in appropriate cases in order to preserve family unity.

The noble Baroness, Lady Hilton, referred to sending children back without suitable arrangements. If we cannot make suitable reception arrangements for children in this category in the third country, we will simply not remove the child. We will only remove the child if those arrangements can be made. But, as I have said, in some cases the parents are already in the third country. In that case, removal to the third country would be entirely appropriate.

The noble Baroness, Lady Hilton, referred exclusively to unaccompanied children, but the amendment covers all children who seek asylum. No case whatever has been made out for exempting accompanied children.

Statistics are important, too. The provisional figures for the last six months of 1995 indicate that cases referred to the unaccompanied children's module came from the following age groups: 38 per cent. claimed to be 17; 29 per cent., 16; 15 per cent., 15; and 18 per cent., 14. Of all the applications, only four were received from children who were 10 or under.

Since January 1995 only two children in total have been returned: one a young man of 17, to Kenya, and a 16 year-old Chinese boy. In the same period, six children made voluntary departures from this country.

It is better for children who have no further basis of stay in the United Kingdom to return home voluntarily, as that is the most comfortable arrangement. We

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encourage that option. However, as I said, no child is removed from this country unless we are certain that reception arrangements have been made. Where voluntary departure cannot be agreed, it may be necessary to take steps to enforce the return--as I said, with the necessary arrangements in place. In the past 12 months, only two refusal decisions involving unaccompanied children were overturned by an adjudicator on appeal.

We are not talking about small numbers. Nearly 30 per cent. of asylum seekers last year were recorded as aged between 18 and 24; nearly 60 per cent. were recorded as being under 30. Were we to reverse the burden of proof, we should give many more such applicants an incentive to lie about their age by pretending to be under 18. Cases of that kind have already come to light. As my noble friends Lady Rawlings and Lady Gardner of Parkes said, that would provide a major new loophole for abusive applications, given the very large number of young asylum seeker applications from those who are around the age of 18.

Finally, I turn to an issue that I know concerns everybody in this Chamber and outside it; namely, how we handle unaccompanied child cases. Under the Immigration Rules applications from unaccompanied children must receive priority. Because of their potential vulnerability, particular care is taken in such cases. Their applications are considered against the normal criteria for determining refugee status.

In response to the growing number of applications from unaccompanied children, a specialist unit was established in the Asylum Division in May 1995 to deal with their cases more speedily and consistently--a development that has been widely welcomed. The Government's view is that unaccompanied children whose asylum applications have failed should be returned to the care of their parents in the country of origin. That is wholly in line with the principle of family unity contained in the United Nations Convention on the Rights of the Child. General Assembly Resolution No. 49/172 of 1994 reaffirmed the importance of family reunification.

The Government made it clear during the passage of the 1993 Asylum and Immigration Appeals Act that we will not seek to remove a child under 18 unless it is possible to put in place acceptable reception arrangements in the country of origin.

The Immigration Rules state that a child will not be interviewed about the substance of an asylum claim if it is possible to obtain sufficient information from other sources. Where it is necessary to interview a child, we have always said that it will be done in the presence of an adult.

The Government fund a panel of advisers to assist unaccompanied children in their dealings with the Home Office and other central and local government departments. The panel is administered by the Children's Division of the Refugee Council.

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Each local authority has a duty under the Children Act to safeguard and promote the welfare of children in need who are within its area. Those duties extend to unaccompanied child asylum seekers and are unaffected by the Bill. The recently introduced benefit changes will also not affect these obligations.

The Red Cross is also used. All unaccompanied children are notified to the British Red Cross Society for inclusion in its register. We encourage use of the Red Cross placing service to re-establish contact with families.

Our present policy is not to remove unaccompanied children to safe third countries unless we have confirmation that suitable reception arrangements are in place in the country concerned. We are not aware of any recent cases where unaccompanied children have been removed to a safe third country.

If the concern of the Committee is the handling and management of such children, the Government meet that in every sense. If the concern is about making sure that children are considered fairly, and speedily where it is appropriate, the Government meet that too.

I hope that the Committee will agree that if we simply concede to this amendment, first, it is far more encompassing than the noble Baroness, Lady Hilton, has accepted, and we should create a loophole which would take us two steps back from where we want to be with this Bill. Understanding the needs of children is central to the Government's concerns in this matter.

Baroness Hilton of Eggardon: I am grateful for the tone and detail of the Minister's response. We need to examine her remarks with considerable closeness. I am not convinced that expedition and speed in dealing with children necessarily produce justice. We shall therefore return on Report very much to the exclusion of children from the fast-track procedure. Although they may be treated as priority cases and the intention may be to return them with expedition and speed to their families, it may in fact deny them the justice that they should receive. We shall therefore return to this point on Report. I beg leave to withdraw the amendment.

Amendment No. 30, as an amendment to Amendment No. 1, by leave, withdrawn.

Amendment No. 1, as amended, agreed to.

On Question, Whether Clause 1 shall stand part of the Bill?

Lord McIntosh of Haringey: I stayed silent on the Question that Amendment No. 1, as amended, be agreed to. Had we succeeded in overturning that, we should have lost the amendment that the right reverend Prelate the Bishop of Liverpool successfully moved last week. However, I want to oppose the Question that Clause 1 stand part of the Bill. I do so for entirely constructive reasons.

Let me be quite clear from the outset. This is not a wrecking amendment. There is a law, introduced only three years ago, for deciding on what basis asylum appeals shall be considered. It includes the provision for a fast-track procedure for unfounded applications and some restriction on access to the Immigration Appeal

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Tribunal. My first point is therefore that there is a law; and it is one that the Government have to prove needs changing before we agree to any change.

The second point to be made is that the provisions in this clause, as in Clauses 2 and 3, are entirely voluntary for the Secretary of State. All the provisions in Clause 1 apply, in accordance with line 8 of the clause as agreed, only,

    "if the Secretary of State has certified that, in his opinion",

and so on.

On a number of occasions in dealing with individual amendments, the Minister made it clear that the Secretary of State will not act in accordance with the strict provisions of the Bill but will "temper the wind to the shorn lamb". We welcome all the assurances that were made. However, they are not on the face of the Bill. What is on the face of the Bill is that Clause 1 is optional; it need be applied only if the Secretary of State chooses to implement the certification procedure. That means that a Labour Government will not have to repeal the provision; they will simply not have to certify any claim.

I do not wish to go over the broader issues raised at Second Reading about alternative ways of dealing with the increase in the number of applications. (I see from the clock that I have already been speaking for 50 minutes!) Briefly, the Government's figures about unfounded applications are very far from being the truth.

The term, "without foundation", applies under the 1993 Act to a claim rather than to the application itself. A claim may be unfounded; it may be inadequate in the evidence it produces. That does not mean that the application itself is unfounded or that the applicant should not be granted refugee status. But, even so, the Government continue to say that only 5 per cent. of those who apply are recognised as refugees and neglect to say that, because 18 per cent. are given exceptional leave to remain, 23 per cent. in effect have some validity either for refugee status or for exceptional leave to remain.

We know from surveys that have been carried out by the Asylum Rights Campaign that where adjudicators have been involved, they have said that, even though only 5 per cent. are accepted as refugees, nevertheless 35 per cent. of the cases which they deal with are indeed at risk. The Government laid some stress on the change in the refusal rates, which have gone down. This is not because there has been any increase in bogus applications but because there has been a drastic reduction in the number of grants of exceptional leave to remain.

Not in any sense by opposing Clause 1 do we wish to deny the right of and the duty on the Government to examine carefully and strictly applications for asylum and make sure that there is a proper distinction between applications for economic asylum and those which are based on persecution under the 1951 convention. But having attempted in detail to correct the many anomalies and deficiencies in the clause, we are not satisfied with the clause as it stands.

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Of course, there has been a significant change made in the clause with the addition of the criterion of torture, introduced by the right reverend Prelates and other noble Lords. We welcome that change and would not wish it to be lost. On the other hand, if the Committee decides not to allow the clause to stand part of the Bill, the evil which that amendment seeks to remedy will no longer be there and there is no need for that amendment. For that reason, I hope that the Lords Spiritual, whom I am glad to see in some number in the Chamber, will feel able to support the Motion that Clause 1 should not stand part of the Bill. They do not lose anything of the victory that they and we all gained last week as a result of that amendment.

As always, the onus is on the Government to show what has changed so dramatically since 1993. I believe that no case has been made in the course of our long and detailed consideration of the detail of the clause and that it would be proper for the clause to be removed from the Bill. I beg to move that Clause 1 do not stand part of the Bill.

7 p.m.

Earl Russell: I must congratulate the noble Lord, Lord McIntosh of Haringey, on his eloquence. That was quite the shortest 50-minute speech to which I have ever listened. I found it very refreshing.

I have listened with as much care as I can to nearly two days of debate about the proposed Clause 1. I cannot say that I am in the least bit reassured. Every now and then, when working very late at night, one's mind makes a little leap. Late at night, I was reading for the 150th time the words "fast track" and, catching sight of the number of the clause, I found myself thinking of "Formula 1" appeals. That, it is well known, is a somewhat risky form of transport. I do not feel that it is inappropriate to the provisions of this clause. There is a great deal in the maxim, "More haste, less speed".

I am sure that anyone who has ever handled an immigration case will agree that a great deal of time is taken in trying to meet impossible deadlines and, because they are impossible, the work has to be done all over again. That has certainly been my experience. Moveover, it is what Judge Pearl, giving evidence to the Glidewell panel said in his opinion would be the effect of the clause. I take his judgment on the matter a very great deal more seriously than mine.

Last Tuesday, when I said that being subjected to the fast track procedure was, in effect, a penalty, I noticed that the noble Baroness shook her head vigorously. Yet, later that evening, she said that the fast track would affect those who seek to frustrate our asylum procedures but that those:

    "who are honest ... will not be adversely affected".--[Official Report, 24/4/96; col. 1120.]

I took that remark as an admission that, being subjected to the fast-track procedure is, in effect, being adversely affected. So I understand it.

One of the new elements about the fast-track procedure compared with that introduced in 1993 is that it will not consider merely whether the appeal is without foundation. If it is found to be with foundation, it cannot

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be referred back. The substance has to be considered. If evidence is needed from foreign countries, it can be a very time-consuming procedure. I have great difficulty in believing that justice can be adequately done.

With regard to the designated list, my noble friend Lord Avebury did the House a great service with the amount of detail that he brought out about the countries selected for designation. My noble friend Lady Seear summed it all up. She said: "If these are the countries that get onto the list, what on earth do you have to do to get off it?" I cannot improve on that remark.

I also feel that in the basic procedure there is discrimination by nationality. I quoted to the noble Baroness Article 3 of the UN convention, which is a legal obligation that this country recognises. We are rightly proud of the way in which we adhere to our legal obligations. That article says:

    "The Contracting States ... shall apply the provisions of the convention to refugees without discrimination as to race, religion or country of origin".

The noble Baroness objected to that reading on the grounds that the word "refugee" applied only to those whose claim had been accepted. I know that there are passages in international law where the word "refugee" does have that meaning. So I took legal advice on its meaning in the context of the convention. I took it from a quarter that I find far more persuasive than any legal advice available to the Home Office. The advice I received was that under Article 3, and in the words of the convention as a whole, one is a refugee from when one applies until someone proves that one is not. Should that prove to be the opinion of the International Court of Justice, we should clearly be found on that article to be in breach of the convention.

At the very least, this clause puts a new hurdle in the way of applicants from some countries and not from others. If that is not discriminatory, I do not know what is. But my gravest dismay concerns sub-paragraph (3) in Clause 1, which insists on supplying accurate information on arrival. I promised the noble Baroness, Lady Gardner of Parkes, that I would debate the issue on the clause stand part debate and not earlier. I have never stood more astonished at my own moderation than when resisting taking up the issue when she raised it.

My first point is that I believe that we are plainly in breach of our international obligations in taking that line. Under Article 31 of the UN Convention:

    "The Contracting States ... shall not impose penalties on account of their illegal entry or presence on refugees who, coming directly from a territory where their life or freedom was threatened, in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good reason for their illegal entry or presence".
If that is the international law to which we are subject, the argument that all applications must be made at the ports is most plainly in breach of it.

My second reason for deploring the argument that all applications must be made at ports is the right to representation. We all find immigration law confusing.

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Indeed, many of us have addressed our remarks to the wrong part of the Bill and the noble Baroness who drew our attention to that fact must admit that that is so. I do not believe that we are an exceptionally stupid group of people. If we can make that mistake, so can refugees operating in a foreign language. They need representation to help them represent their case and depriving them of that is an extremely severe affliction. That alone would be a reason for saying that the Government are mistaken in insisting that all applications should be made at the port of entry.

My third reason is that mistakes can be made. Mistakes at the port of entry are not easy to rectify. The noble Baroness will have noticed that I quoted throughout the debate from Home Office refusal letters. The survey from which those came was greeted by the Home Office with the comment that they were exceptional. For all I know that may be so; I am not contesting the point. What I say is that if they are exceptional, there are a great many exceptions. If we are to be asked to accept the judgment of those at the ports as the only judgment we are going to get, we need a much higher overall standard than any of which we have yet seen the least evidence.

The noble Baroness talks of abuses. This clause will create far more abuses than it prevents. It sweeps them all up together. As 1066 And All That says about the Zulu War: cause--Zulus; Zulus exterminated--peace with Zulus. That will be the effect of the clause.

7.15 p.m.

Baroness Blatch: The provision set out in Clause 1 is a principle which Parliament endorsed when it passed the 1993 Act. Paragraph 5 of Schedule 2 to that Act provides an accelerated appeal for claims which the Secretary of State certifies as being without foundation. In the light of the growing levels of unfounded applications, the time has come to build on those arrangements. Streamlining is a necessary component of any effective policy for bringing down the large backlog of unresolved cases. And it will also send a strong signal that unfounded claims will be met by robust procedures.

We have already debated this clause in some detail in discussion of proposals for amendments. Much of the concern that has been expressed has been based on misunderstanding of its intention and effect. It is worth reminding the Committee that there are two basic procedural safeguards that will not be infringed in any way by this clause. First, all asylum claims will continue to be considered on their merits against the same convention criteria as all other claims. A certificate under Clause 1 cannot be issued until that has been done. And, secondly, before removal to their country of origin all applicants will continue to have the right to appeal to an independent adjudicator against an adverse decision on their claim.

Clause 1 will allow the Secretary of State to designate countries where there is in general no risk of persecution. We have given an account of how that power will work, what criteria will apply, the factors we will take into account, the countries we would designate if the power were available now, and our proposals for

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informing Parliament of the assessments upon which the decision to designate will be taken. The designation principle is not new. Germany, the Netherlands, Switzerland, Denmark and Finland already operate similar arrangements. And let me remind the Committee again of two key points. There will be no blanket ban on claims from designated countries. And applicants will still have an appeal to an independent adjudicator.

But designation will provide the context against which claims from designated countries are considered. And claims which are refused will attract the accelerated appeal procedure, with shorter deadlines for making, hearing and determining appeals. Moreover, if the adjudicator agrees with the Secretary of State that the application is unfounded, that will be the end of the matter. There will be no further avenue of appeal to the Immigration Appeal Tribunal. Last year, at least 97 per cent. of claims from nationals of the seven countries we have indicated as candidates for designation were refused. That is over 6,750 applications. It cannot be right that we must give equal time and weight to claims from countries like Poland, Romania, India, Pakistan, Bulgaria, Cyprus and Ghana as to claims from countries like Iraq, Afghanistan or Liberia.

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