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Lord McIntosh of Haringey: On Second Reading we welcomed the extension of bail rights and we welcome this further extension.

Lord Hylton: I also very much welcome this extension to bail in principle. However, will the Minister give an assurance that bail will not be set so high as to be completely beyond the means of the people in question?

Baroness Blatch: The granting of bail is not a matter for me as a politician or a Minister. It would be a matter for the authorities.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

Lord Dubs moved Amendment No. 48:

After Clause 3, insert the following new clause--

Adjudicator's recommendation

(".--(1) In Schedule 2 to the 1993 Act, after paragraph 3 there shall be inserted the following paragraphs--
"3A. Where a special adjudicator confirms a refusal, variation, decision or directions against which a person has appealed on the grounds mentioned in subsections (1) to (4) of section 8 of this Act, he shall determine forthwith whether there are other circumstances which, in his opinion, justify allowing the person to enter or not requiring the person to leave the United Kingdom.
3B. If a special adjudicator determines that there are such circumstances, he shall direct that the Secretary of State shall grant leave for the person to enter the United Kingdom if he has not already been granted such leave and to remain in the United Kingdom for as long as those circumstances shall continue to exist."

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(2) In paragraph 4(1) of Schedule 2 to the 1993 Act, after the words "section 8 of this Act", there shall be inserted the words "and paragraph 3A of this Schedule".").

The noble Lord said: The purpose of this amendment is to enable an adjudicator to allow appeals for compassionate reasons. Under the current rules, an adjudicator can allow an appeal only if he finds that the appellant is a refugee as defined by the 1951 convention. An adjudicator cannot allow an appeal if the applicant qualifies to stay here under any other international treaty; for example, the European Convention on Human Rights. Nor can an adjudicator allow an appeal if he believes that the appellant is likely to suffer or even be killed if removed but not for a convention reason or if the adjudicator believes that the appellant should be allowed to remain here for compassionate reasons; for example, ill health.

In such circumstances, the only power that an adjudicator has is to make a recommendation to the Home Office and the Home Office is not obliged to follow such a recommendation. If this amendment were to be passed, the adjudicator would have greater powers to allow appeals on compassionate grounds on the lines that I have stated. I beg to move.

Lord Mackay of Drumadoon: Amendment No. 48 would represent a fundamental and, I have to say, unwelcome departure from the existing role of the special adjudicator. Responsibility for the exercise of discretion outside the Immigration Rules in individual cases rests with the Secretary of State: this amendment would go against that principle. It would in effect give special adjudicators at large powers to grant exceptional leave and would mean that we would be obliged to accept any recommendation from a special adjudicator that exceptional leave be granted. That would be wrong in principle.

Another reason why we consider this amendment unacceptable is that it overlooks the fact that the question of whether exceptional leave should be granted is already built into the initial consideration process. Anyone refused asylum has had the case for exceptional leave fully examined. It is only if the adjudicator's recommendation arises from exceptional compassionate circumstances which have not previously been considered, and which would merit the exercise of discretion outside the Immigration Rules, that we would be likely to consider accepting such a recommendation. We believe that this is a perfectly reasonable policy for the Government to follow. I therefore urge the Committee to resist this amendment.

11 p.m.

Lord Dubs: I hear what the Minister says. Of course, given the fact that exceptional leave to remain is a discretion exercised by the Home Secretary, it is perhaps worth commenting that the proportion of all asylum claims granted ELR dropped very rapidly. Speaking from memory, some three or four years ago the figure for those granted ELR was something like 60 per cent. but it is now down to about 20 per cent. Therefore, there has been a rapid drop. As ELR is a discretionary status, it is clear that the Home Office has deliberately sought

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to reduce the number of persons getting exceptional leave to remain simply by administrative decision. That explains why there has been such a sharp drop in the number of persons allowed to stay in this country.

That was a dramatic drop and was engineered by the Government. I had hoped that the amendment would, as it were, prove a better basis for granting ELR by allowing the adjudicator to allow specific appeals on grounds for which the Government normally grant ELR. However, I see that the Government are not to be persuaded and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Bishop of Ripon moved Amendment No. 49

After Clause 3, insert the following new clause--

Young unaccompanied asylum seekers

(".--(1) This section applies to a child who arrives or is present in the United Kingdom unaccompanied by a parent, adult relative, guardian or other adult who assumes responsibility for the child, provided that the child has made an application for asylum in the United Kingdom or has expressed a fear of return to his country of origin or country of habitual residence.
(2) If a doubt arises as to whether any such child is or is not under the age of 18 years, such child shall be regarded as being under the age of 18 years unless the Immigration Officer is able to prove to the contrary.
(3) No child who arrives or is present in the United Kingdom unaccompanied by a parent, adult relative, guardian or other adult who assumes responsibility for the child shall be deported, removed from or required to leave the United Kingdom unless adequate arrangements exist for the child's reception and care in the country to which it is intended he should be sent.").

The right reverend Prelate said: With this amendment we return to the question of the determination of age. I should like to make a few points in that connection. The noble Lord, Lord Avebury, and I had an exchange about X-rays. The difficulty that we are in at present is that those children whose age is subject to question have a choice: they can either remain in detention with adults, or they can undergo the X-ray process to which the noble Lord, Lord Avebury, took such exception. Faced with that choice, it is difficult for them to make such a decision.

As I understood him, the noble Lord, Lord Winston, said that any determination of age would be liable to some degree of uncertainty; indeed, I believe that he mentioned something like two years as the possible extent of that uncertainty. The noble Lord, Lord Avebury, also mentioned the possibility of having a panel of paediatricians. I wonder whether the Minister would be willing to consider a proposal for such a panel to be established. There is, of course, no such panel at present. It is clear that children whose age is the subject of dispute are in very considerable difficulty. We have already given an account of the numbers of such children and the situations in which they find themselves. Therefore, it seems clear that we need to find some way of resolving the matter. I wonder whether the suggestion of such a panel would be acceptable, given the fact that there will be a degree of uncertainty. However, that uncertainty will not be so wide as to

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make the determination of age totally random. Clearly if you can get it right within two years, you would at least have some idea of whether you are dealing with a 16 year-old or a 20 year-old.

When we debated previous amendments, the Minister spoke about existing policy; indeed, I was most grateful to her for the way in which she did so. It seemed to me that what the noble Baroness was saying did embody the substance of subsection (3) of the amendment. I wonder, therefore, whether she would consider the contents of that subsection to be suitable for inclusion in the Bill. It is quite clear that the Immigration Service is operating its policy with sensitivity. That point has been made both by the Minister of State, Ann Widdecombe, and by the noble Baroness. Does the Minister feel that that part of the amendment would be worthy of consideration? I beg to move.

Viscount Brentwood: I originally wanted to support the amendment in principle, but I believe that my noble friend has answered my concerns about the treatment of young people. I hope that the noble Baroness, Lady Williams, will write to my noble friend with the details of the youth who has been in and out of detention for two years. I believe that my noble friend shares with me a horror of people under the age of 18 being in detention at all.

It is important that we investigate such situations to ensure that they do not recur. Young people awaiting the determination of an asylum application should not be kept in detention. Perhaps my noble friend could see that they are fostered out while the appeal is pending, I should be much happier with that.

My noble friend answered the questions posed by subsections (2) and (3) of the amendment and I am not sure that anything more is needed. However, I should like a further assurance that we will continue to treat child asylum seekers with the utmost care, and not push them into detention just because an assessor considers that they might be over 18. We have been informed, I think by the Refugee Council, that quite a number of juveniles have been detained because they were originally thought to be over 18 when they were not.

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