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Earl Russell: The noble Baroness just said that we cannot give equal weight. Has she not abandoned her claim under international law to give claims individual scrutiny? Has not the Home Office just lost another court case?

Baroness Blatch: No. I am saying that individual cases will be properly considered. They will be fully considered. We are making the distinction between those countries from which most applications come and from which most applications fail. If the noble Earl believes that we are in breach of our international obligation by the inclusion of that provision in the Bill, no doubt it will come to light before the end of the proceedings on the Bill through this Chamber.

On the parliamentary procedure for designation orders, the Government accepted the recommendations by the Delegated Powers Scrutiny Committee. The Chamber discussed the degree of safety required for designation. Some entirely misplaced concerns have been expressed about the test required by the Bill. I have made clear that the words,

do not mean that it would be lawful to designate a country where there was a serious level of persecution aimed at minorities. Nazi Germany patently could not have qualified.

Clause 1 will also allow us to certify refused claims where, on arrival, the applicant was unable without reasonable explanation to present a travel document, or where an applicant obtains or seeks to obtain entry using false papers. The Committee rightly resisted a proposal to delete that provision from the Bill. Destruction of travel documents by asylum seekers attempting to impede the asylum consideration process is a growing problem. We accept that genuine refugees may need to use false papers in order to flee their country. The clause

30 Apr 1996 : Column 1542

will not affect them, provided they present and declare their papers on arrival. Provided they do that, no certificate will be issued under sub-paragraph 3, even if asylum is refused.

The noble Earl, Lord Russell, referred first to Article 3. Our own courts in this country, in his challenge to the benefits restrictions, rejected the interpretation of "refugee" put forward by the noble Earl. I must put the question back to the noble Earl, who cited Article 31 of the United Nations Convention. I shall re-read it for the purposes of the point I want to make. It states:

    "The contracting state 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 cause for their illegal entry or presence".

Nothing in Clause 1 is in breach of that article of the United Nations Convention. I am not sure therefore that I accept the point made by the noble Earl.

Clause 1 introduces other new criteria for certifying that a claim is without foundation. They include claims the basis for which no longer subsists; those lodged only after the refusal of leave to enter or the commencement of removal action; and those which are manifestly fraudulent. We have made clear in our background note the intended scope of these provisions.

Each of the new criteria has a specific application. The clause will not allow us to certify all refused claims. A substantial proportion of cases will continue to fall outside the scope of the certification procedure and will therefore attract the standard appeal rather than the accelerated one. The role of the Immigration Tribunal in developing immigration case law will therefore remain.

Clause 1 will enable manifestly unfounded claims to be processed more quickly. That will help to deter such claims from being made in the first place. Genuine refugees will benefit from reduced abuse of the asylum system. The proposals are a sensible and balanced improvement to our procedures.

In opposing Clause 1, the sum of the amendments tabled to the clause by the Opposition adds up to the fact that some Members of the Committee do not accept the case for an extension of the accelerated appeals procedure.

We believe that a case has been made and I commend the clause to the Committee.

7.19 p.m.

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

*Their Lordships divided: Contents, 133; Not-Contents, 81.

Division No. 2


Abinger, L.
Ackner, L.
Addison, V.
Aldington, L.
Allenby of Megiddo, V.
Ashbourne, L.
Balfour, E.
Belhaven and Stenton, L.
Blaker, L.
Blatch, B.
Boardman, L.
Bowness, L.
Brabazon of Tara, L.
Bridgeman, V.
Brigstocke, B.
Brougham and Vaux, L.
Burnham, L.
Butterworth, L.
Cadman, L.
Caithness, E.
Carnegy of Lour, B.
Carnock, L.
Chalker of Wallasey, B.
Chelmsford, V.
Chesham, L. [Teller.]
Chorley, L.
Clanwilliam, E.
Clark of Kempston, L.
Colwyn, L.
Courtown, E.
Craigavon, V.
Cranborne, V. [Lord Privy Seal.]
Crickhowell, L.
Cross, V.
Cumberlege, B.
De L'Isle, V.
Dean of Harptree, L.
Denton of Wakefield, B.
Dilhorne, V.
Dixon-Smith, L.
Donegall, M.
Dundonald, E.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Finsberg, L.
Flather, B.
Gardner of Parkes, B.
Gisborough, L.
Glenarthur, L.
Goold, L.
Goschen, V.
Gowrie, E.
Gray of Contin, L.
Halsbury, E.
Harding of Petherton, L.
Harlech, L.
Harmar-Nicholls, L.
Hemphill, L.
Henley, L.
Hesketh, L.
Hogg, B.
Holderness, L.
HolmPatrick, L.
Hylton-Foster, B.
Jeffreys, L.
Kimball, L.
Kingsland, L.
Kinloss, Ly.
Kinnoull, E.
Knutsford, V.
Lane of Horsell, L.
Lauderdale, E.
Lindsay, E.
Lindsey and Abingdon, E.
Liverpool, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Marlesford, L.
Masham of Ilton, B.
Mersey, V.
Miller of Hendon, B.
Monk Bretton, L.
Montgomery of Alamein, V.
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Newall, L.
Norrie, L.
Northesk, E.
O'Cathain, B.
Oxfuird, V.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Perry of Southwark, B.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Rankeillour, L.
Rawlings, B.
Rennell, L.
Renton, L.
Renwick, L.
Sainsbury of Preston Candover, L.
Sandwich, E.
Seccombe, B.
Shannon, E.
Sharples, B.
Shaw of Northstead, L.
Stewartby, L.
Stockton, E.
Stodart of Leaston, L.
Strange, B.
Strathcarron, L.
Strathclyde, L. [Teller.]
Thomas of Gwydir, L.
Tollemache, L.
Trumpington, B.
Vivian, L.
Wade of Chorlton, L.
Wakeham, L.
Wharton, B.
Whitelaw, V.
Wilcox, B.
Wise, L.
Wynford, L.
Young, B.


Acton, L.
Addington, L.
Avebury, L.
Barnett, L.
Beaumont of Whitley, L.
Birk, B.
Borrie, L.
Bristol, Bp.
Carmichael of Kelvingrove, L.
Chester, Bp.
Chichester, E.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
David, B.
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B.
Donaldson of Kingsbridge, L.
Dormand of Easington, L.
Dubs, L.
Ewing of Kirkford, L.
Falkland, V.
Farrington of Ribbleton, B.
Fisher of Rednal, B.
Freyberg, L.
Gallacher, L.
Gladwin of Clee, L.
Graham of Edmonton, L. [Teller.]
Gregson, L.
Grey, E.
Hamwee, B.
Harris of Greenwich, L.
Haskel, L.
Hayman, B.
Henderson of Brompton, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howell, L.
Howie of Troon, L.
Hylton, L.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Kilbracken, L.
Kirkhill, L.
Lincoln, Bp.
Lockwood, B.
McIntosh of Haringey, L.
Mackie of Benshie, L.
Mallalieu, B.
Mayhew, L.
Merlyn-Rees, L.
Meston, L.
Milner of Leeds, L.
Murray of Epping Forest, L.
Nicol, B.
Rea, L.
Redesdale, L.
Richard, L.
Ripon, Bp.
Rochester, L.
Rodgers of Quarry Bank, L.
Runcie, L.
Russell, E.
Seear, B. [Teller.]
Sefton of Garston, L.
Serota, B.
Sewel, L.
Shepherd, L.
Stoddart of Swindon, L.
Taylor of Gryfe, L.
Thomson of Monifieth, L.
Thurlow, L.
Tope, L.
Wallace of Saltaire, L.
Warnock, B.
Wedderburn of Charlton, L.
Whaddon, L.
White, B.
Williams of Crosby, B.
Winston, L.

*[See col. 1558] Resolved in the affirmative, and Clause 1 agreed to accordingly.

30 Apr 1996 : Column 1544

The Earl of Courtown: I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to. House resumed.

Habitual Residence Test

7.29 p.m.

Earl Russell rose to ask Her Majesty's Government, in the light of the report of the National Association of Citizens' Advice Bureaux, Failing the Test--CAB clients' experience of the habitual residence test in social security, what have been the results of any government monitoring of the effects of the habitual residence test.

The noble Earl said: My Lords, the Minister will remember, I think quite well, a debate we had on the habitual residence test which denies means-tested benefits to people believed not to be habitually resident in this country when the test was introduced. I am now offering the Minister a sporting chance for a return match.

On that occasion each of us had our assessment of what the test was likely to involve. The Minister will take it for granted that his was slightly more optimistic than mine. We now have a body of evidence available. I have the report from the National Association of Citizens' Advice Bureaux, Failing the Test. In that context I would like to say that I have found it by far the most reliable, non-partisan and helpful organisation that regularly briefs this House.

30 Apr 1996 : Column 1545

Doubtless, the Minister will have his own monitoring. As is well known, the Department of Social Security will always monitor any of the measures that it brings in. So I am asking the Minister to compare his monitoring with mine to see what happens. I now turn to some figures. Until the end of last year, 25,754 had failed the test and lost means-tested benefit. I understand that that figure can now be updated. There were over 5,000 British nationals in that figure and now, I understand, there are over 9,000.

The percentage of British nationals at the end of 1995 was 21 per cent. and rising. I do not know whether that figure is still rising. Anyone who has been in the Chamber this afternoon will appreciate that I am concerned about the rights of those who are not British nationals. But on this occasion I am going to dwell, first, on the rights of those who are British nationals because to be denied a claim to benefit in your own country when you have no other country to go to, seems to me to be peculiarly wrong. I also believe that it illustrates some of the poor logic in the test.

The Minister himself said on 20th October 1994 that those who were affected, even if they were British nationals, would be, "strangers to this country". I believe that it has not turned out as he hoped. I quote first a case that he has heard me quote before; namely, the niece of our former Leader on these Benches, my late friend Lord Byers. She had gone to Brussels to nurse a sick mother. We all know about the problems of carers, but I believe that it compounds them infinitely if they come home, their caring concluded, and find that they are denied benefit in their own country. Under the new law she is now entitled to benefit in France, but she is not entitled to it in this country and she is North Oxford born and bred. Believe me, I can recognise North Oxford when I meet it! That seems to me to be a little cock-eyed.

Another person with whom I have been in contact--again, not in the citizens' advice bureau sample--had been engaged teaching in France for a number of years. The venture folded and he returned home. He was found not to be habitually resident. So far from the family being strangers to this country, I knew, although he did not, that in the reign of Henry VIII his ancestors had been the biggest taxpayers in England. So much for "strangers to this country"! There are plenty more such cases in the report. I hope the Minister will forgive me if I am a little confused in sorting my papers because, as he knows, I have been otherwise occupied during the afternoon.

There is the case of a man aged 47 who worked in Britain all his life. He went to France to help a friend run a holiday home. After five years the arrangement broke down. We know that that sort of thing happens in small businesses. He returned home and was held not to be habitually resident on the grounds that he had no fixed address and no job. Of course one does not when one returns from running a business abroad. So he was refused benefit. I simply do not see the logic or the sense in that decision.

The test is adversely affecting those who exercise their right to mobility of labour under EU law. There is the case of a scaffolder who spent six months working

30 Apr 1996 : Column 1546

in Holland. Work in the construction business is short in this country at the moment. After six months he returned to this country and he was told that he was no longer habitually resident and benefit was refused. There is a carpenter in the building industry who lived and worked in the UK all his life. Because of the recession he was out of work. He was told that there was work available in Germany and he landed up with one of those employers who do not pay. After six weeks he gave it up and came back. He fell foul of the habitual residence test as well. He told the CAB that he was now very worried that if he applied for a building job in Europe again and then at some future point he needed benefit, he might be refused. So he drew the lesson, with apologies to Noel Coward, "Don't put your bike on the Shuttle, Mr. Tebbit".

I remind the Minister that this is not only an interference with people's rights under EU law; it is also a strain on the British Treasury. If people who would otherwise have gone abroad in Europe and worked there during a recession and are prevented from doing it, they remain in this country and they are a charge on the British benefit system. Perhaps for a second I may revert to this afternoon's Question. That seems to me to be the sort of secondary consequence which the Department of Social Security would be very wise to take into account if it genuinely wishes to save money because here, I believe, it is wasted.

A good many people are affected if they return home because of misfortune. For example, a woman went to live in South Africa when she got married and, after a number of years, the marriage broke up. Those of us who sat through the Family Law Bill know that that happens. She came home. She was entitled to a pension of £25 a year because that was under the contributory principle which is not affected. She was not entitled to any top-up from income support. The Minister himself said that people who are British and who were affected, would be strangers to pay-as-you-earn and to tax and national insurance.

I offer the Minister an alternative to eating his words because they are very indigestible. I offer him the alternative of introducing a change in the law that those who are entitled to benefit under the contributory principle shall be found to be habitually resident. I cannot see any inequity in that; it is perfectly possible to do.

There is also a great deal of hardship for anyone who marries abroad. A woman in Spain was the victim of domestic violence. She tried to come home, but could not get benefit. An 18 year-old on a summer contract in Greece, believe it or not, who was injured in a car accident, was flown home and found not to be habitually resident and he was denied any benefit. That might happen to any of your Lordships' grandchildren. It is rather extraordinary. So, first, one does not work abroad; secondly, one does not marry abroad·

The test has worked peculiarly harshly on British people taken abroad while they were children. Before the Minister waxes too clever about that, I warn him that that is my own case. I am prepared to take offence at anything that casts doubt on my Britishness. There is

30 Apr 1996 : Column 1547

the example of two British people living in Zambia who were born in Britain. One of them wanted to come back and join the British Army. He could not join by post because the Zambian post is not very good. He was found not to be habitually resident. Another example is that of parents working in the Gulf with children at boarding school in England. When they came of age they were found not to be habitually resident. I am surprised that the oil companies have not protested at that.

I now turn to people who are found in effect to be stateless. A British subject living in Nigeria wanted to be a doctor. She duly qualified, but could not do that in Nigeria because she was foreign. She could not come to look for a job in Britain because she was not habitually resident. Those people really are shunted from pillar to post. That causes considerable hardship and puts yet another burden on local authorities under Section 17 of the Children Act. With all that we have heard today about what is happening with regard to asylum seekers, it seems grossly unfair to put further burdens on local authorities.

During the county council elections of 1993, when the results came through I am afraid that I murmured the old anarchists' slogan, "If voting changed anything, they'd abolish it". I am afraid that I was not mistaken. We find the case of a couple living for a whole week on six pints of milk and one loaf. If that is not gross hardship, I do not know what is. We find the case of a woman who had been living on bread rolls from the Salvation Army, who fainted in the CAB office as she tried to explain her case. I cannot see any useful principle that justifies inflicting that sort of hardship on people who have done absolutely nothing wrong--and I entirely agree with the Government that under EU law they cannot, and should not, discriminate between British nationals and others, which is why I think that they should not do it at all.

The Minister also gave us some assurances on the case law. He said--I regret that I do not have his words to hand, but they are buried somewhere beneath this mountain of evidence--that the Government were not using the test that the House of Commons discussed in 1986--that is, the test of being settled here. He said that they were using something a great deal less onerous. However, as a result of a ruling by Commissioner Howell in 1995, the ground of case law has become something very like what the Minister assured us it was not. Claimants now have to be settled here for a considerable period of time.

As the Minister admitted when we last discussed this, habitual residence is a very vague concept. One set of cases in EU employment law tends to gravitate towards the last place of employment. Another is based on citizenship. That is the line that led to what had previously been thought to be standard precedent. I refer to the case in the House of Lords of ex parte Shah, in which my noble friend Lord Lester of Herne Hill was the successful advocate. In that case the noble and learned Lord, Lord Scarman, made it perfectly plain that a settled period of residence was not necessary; it was a test of intention.

30 Apr 1996 : Column 1548

In my view, there is the plainest possible conflict between Commissioner Howell's ruling on the one hand and the judgment of the noble and learned Lord, Lord Scarman, on the other. The noble and learned Lord's judgment is in line with the assurances that the Minister gave us in October 1994. It is also the higher judicial authority. For both those reasons, I suggest that the Department of Social Security should follow that judgment rather than the ruling of Commissioner Howell--that is, if we must have the test at all. Indeed, in the view of these Benches, the test serves no useful purpose. It does not even do very much to achieve the objective which the Government set for it. Like so many things that we have been discussing, it says, "If any are guilty, sweep up the innocent with them", along the lines of Sherlock Holmes' Inspector Athelney Jones, who arrested everyone in the house to make sure that he had got the right person.

If we were in a position to do so, we on these Benches would repeal the test. I hope that the Government, when they ultimately go before the electorate, will tell the people that they will do likewise.

7.44 p.m.

Baroness Hollis of Heigham: My Lords, I am grateful to the noble Earl, Lord Russell, for tabling this Unstarred Question. It is important that we are reminded that the issue of refusing benefit is not a matter of concern only to those who are asylum seekers; there is also the problem of the habitual residence test. Like the noble Earl, I shall draw extensively on the important CAB document, Failing the Test.

The habitual residence test was devised at an exceedingly unpleasant Tory Party Conference to give the Secretary of State a two-minute ovation and a three-minute soundbite. He succeeded in both of those, but failed entirely to consider the effects of what he was proposing.

As we all know, social security benefits come in two packages: insurance-based benefits and means-tested benefits. Insurance-based benefits, such as unemployment benefit, are earned through work and are therefore portable abroad. Means-tested benefits, which test destitution, are not. I accept that those benefits are problematic and they are the benefits that are affected by the habitual residence test. The Government claimed that what they were seeking to do at that Tory Party Conference was to exclude from means-tested benefits those EU nationals, mainly Spaniards advertising in Time Out, who, according to Mr. Lilley, were coming to Britain as tourists for the good life and British social security. The Secretary of State could thus portray himself as simultaneously anti-fraud and anti-European. I wonder whether the Tory Party Conference would have been quite so jubilant if those present had realised just how many other people would be hit by those provisions.

No one--and certainly not these Benches--defends fraud. I do not doubt that when he replies the Minister will quote the figures used last night in the other place by Mr. Evans to show that British nationals are affected less by the provisions than, say, European nationals.

30 Apr 1996 : Column 1549

Nonetheless, as the noble Earl said, three groups of people are affected by the habitual residence test: EU nationals, British citizens and what the CAB calls "others".

I turn first to the EU nationals, the group that Mr. Lilley was aiming to hit. Only about half of those who have come through the system have lost their benefit. Why?--because if they are in work or have worked, they are entitled to unemployment benefit on a reciprocal basis; and if they are not in work, they should not have been admitted unless they could show sufficient resources for self-support. When the JSA test is introduced in October, it will apply a tough, actively-seeking-work test for British and EC nationals alike. In so far as there are any additional problems--I accept that there are some--surely the statesmanlike response is to negotiate appropriate reciprocal arrangements and not play the chauvinistic chorus at the Tory Party Conference.

So, the test is not particularly reaching the targeted group, as Mr. Lilley promised at that Tory Party Conference; instead the provisions have reached two other groups who were not originally targeted and about which Mr. Lilley was extremely quiet at that conference. As the noble Earl rightly said, the second of those groups comprises British citizens. Nearly one person in three denied benefit under the habitual residence test is a British citizen whose home country this is. According to the figures that were given last night, that group numbers 9,000.

Perhaps I may give an example from the Independent of 14th February 1996. I refer to the case of Mr. Hugh Sweeney, 39, a sheet-metal worker who, given his trade, was unable to find work in the UK and moved to Australia two-and-a-half years ago looking for work, while continuing to keep his home in Newport Pagnell, on which he paid mortgage, council tax, insurance and water rates. He had a neck injury and came back from Australia. His wife was not very happy there and she came home as well. They have used up all their savings and are living on handouts from his 70 year-old mother-in-law and his brother. He was told that, although he had kept his home here and paid taxes on it and although he is a British citizen, this is not his habitual residence. He is now penniless and has no access to income support.

What about the missionary doctor, returning home after 10 years abroad? As the noble Earl said, what about British building workers? Given the state of our construction industry today, most construction work is to be found on the Continent. The noble Earl referred to the scaffolding worker who went to work in Holland for six months. Building workers often go to Germany for, say, 12 months, doing what the noble Lord, Lord Tebbit, would recommend. On returning home to their permanent address--the very address here that they left--they find that they are ineligible for all benefits.

What about British women who marry foreign or EU nationals and whose marriages break down? They return home to find that they are ineligible for benefit. What about the young woman of Pakistani origin who at 17 went to Pakistan for an arranged marriage and

30 Apr 1996 : Column 1550

returned home, pregnant within eight months to find that she had lost her habitual residence qualification? She had no money and was supported by parents who were themselves on income support. When she gave birth to her baby five months later, it was found to be seriously and worryingly under weight because of the mother's malnutrition. What about the British citizen, originally from Nigeria, who had worked for the National Health Service since 1965, and who was refused benefit to top up a retirement pension after a three-month visit, following retirement, to Nigeria to see former members of the extended family? As the CAB has said, under the habitual residence rule there are two classes of British citizen: a first class, who firmly hug our shores, and a second class, who may seek temporary work abroad and are rewarded for their initiative in coming off benefit by being denied benefit when they return home.

It is even worse than that. I believe that British citizens who return home after working abroad for six or 12 months are in a worse position that EU nationals. If an EU national has worked in Britain for just 12 months and lived in the UK for three years, he or she can travel abroad for six months and keep his benefit. But if he is British and has lived and worked in this country for 30 years and then goes abroad, not for 12 but for three months, he can lose his entire benefit. What is he supposed to do? Where is he to go? On what is he supposed to live? Who is supposed to take him in? Would the Tory Party conference have cheered quite so enthusiastically if Mr. Lilley had said that these were the people that his proposals would hit? One may be talking of one's son or daughter. The noble Earl quoted the niece of Lord Byers. It appears that a measure designed to stop European benefit holidays has given EU nationals a more privileged status vis-o-vis means-tested benefits than British citizens.

I come finally to the "others" category, which interlocks with the immigration and asylum-seeking rules. Few foreign nationals are eligible for means-tested benefits unless they have been admitted by the immigration authorities and settled or they are deemed asylum seekers at the port of entry. People who are legally settled here, after a visit abroad, find on their return that they have lost their benefit. They may travel to see relatives. For example, a Nigerian man, who had lived in Britain for 20 years and recently become unemployed, travelled to Nigeria for two and a half months to attend to his sick father. On his return he was refused benefit on the ground that he was not habitually resident. I refer to a lone parent who was officially recognised as settled in Britain. She went abroad after 11 years in this country to attempt to negotiate the release of her husband from a Middle East country of origin where he was detained. She had a child at school here and was a school governor. She was refused benefit on her return on the basis that she was not habitually resident.

Mr. Lilley wrapped himself in a patriotic flag at the Tory Party conference. He was worried on behalf of British citizens and taxpayers. We, too, are worried about British citizens and taxpayers--that is, those who live and work and pay taxes in this country and who briefly leave this country--perhaps for six months or a

30 Apr 1996 : Column 1551

year--to find work. On their return, perhaps after a marriage breakdown, they find that they have lost all their rights to means-tested benefits. Is our citizenship so fragile or tenuous that it is broken by working for six months as a scaffolder in Holland, by a visit to Pakistan for eight months, or a visit to Nigeria for two months? As for European nationals whom Mr. Lilley was so anxious to exclude, they continue to come and be housed and to claim benefit because that is required under European law.

7.55 p.m.

Lord Mackay of Ardbrecknish: My Lords, at least one matter has been made clear by this short debate. Both parties opposite wish to abolish the habitual residence test and go back to the position before when people could come to this country and immediately claim income-related benefits at a cost to the British taxpayer currently estimated to be £30 million.

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