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Lord Hylton: I should like to invite the Minister to reflect between now and the next stage of this Bill or between now and the appropriate stage of the asylum Bill on the situation of those people who come to this country with the intention of claiming asylum but who fail to do so at the port of entry. There are

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many good reasons why they should fail to do so. For example, they may be in total ignorance of British asylum law; they may lack any command of the English language; or there may be no interpreters at the port of entry at the time they arrive. Those are the kind of reasons why people sometimes fail to make their application at the point at which they are supposed to make it. Many of them then go on to apply for asylum within a reasonable period after arrival.

Earl Russell: In trying to persuade me that I should follow the example of the housing benefit regulations, the Minister is trying to convince me that two wrongs make a right. I am not persuaded of that. I say one thing more to him. He occasionally reproves me for raising arguments about powers by saying, "No British government would ever do this." He is here doing something which, as recently as two years' ago, I believed, with the greatest confidence, no British government would ever do.

The most improbable examples I use in that area seem to me no more improbable than this seemed to me only very recently. I do not expect that I am going to persuade the Minister any more than he expects to persuade me. Since this seems the wrong time of night to have recourse to the Division Lobby, there is nothing else I can do but to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 265BB not moved.]

Earl Russell moved Amendment No. 265BC:

Page 96, line 42, leave out subsection (4).

The noble Earl said: This amendment deals with the position of spouses of asylum seekers. It is quite familiar ground that under the 1977 legislation single people do not enjoy a claim to priority homelessness. Clause 165(4) states that,

    "no account shall be taken of any other person... [who] resides...if that other person is a person from abroad who is ineligible for housing assistance".
In other words, if one marries an asylum seeker one is treated as being single. I do not usually spend a great deal of eloquence on the defence of the family, but I believe that people who want to live in families should be allowed to do so without wanton attempts by the state to prevent them.

People who wish to marry asylum seekers, as they do from day to day, should have just the same rights to be able to have a family, live at peace with it, and enjoy the protection of the state, as any others. By making spousal contact with an asylum seeker an infectious condition like a kind of plague so that it puts one out of the protection of the state the Minister is doing something which has racial connotations which I find extremely unsavoury. I am sure that that was not the intention. I am sure that it was the usual Treasury intention which simply does not take into consideration these categories at all. But that is the

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effect of what the Government are doing. It is an outrageous proposal and I hope that they will consider withdrawing it. I beg to move.

Lord Mackay of Ardbrecknish: The amendment would remove Clause 165(4) which ensures that, in assessing homelessness applications, authorities cannot take account of a person who normally resides with the applicant if that person is someone from abroad who is not eligible for assistance under Part VII. If my memory serves me rightly, we discussed the matter this afternoon, which is rather a long time ago. The circumstances are the same here as they were then as regards eligibility for the housing list.

Clause 165(4) is an important provision. A large proportion of homelessness applicants do have dependants. In their own right, these people do not have a priority need for accommodation. That is conferred upon them and their application by the presence of those dependants.

Our policy on eligibility for assistance under Part VII is clear. I have already explained it. Persons from abroad who are not entitled to housing benefit should not be entitled to homelessness assistance. That must apply equally to people who are the dependants of others. If the question of whether there is a priority need turns on the presence of a dependant who is not eligible, then it is logical that a duty should not be owed in those circumstances. I hope that I have made the position clear. I appreciate that it is yet another message that the noble Earl is not going to agree with, but I do not believe that he will be surprised. He may not have heard me earlier today on the subject because I believe I spoke to it before the noble Earl joined the Committee. He will not be surprised because of the nature of my other defences on the matter.

Earl Russell: I fear that the Minister has made the position clear. He has made it clear that asylum seekers are unclean and that one should not associate with them. That is the only way in which I can read what he says. Before we leave the subject, I ask him to give some thought as to whether his proposals infringe Article 8 of the European Convention on Human Rights, which guarantees a right to privacy and to family life. It seems to me that a British subject who marries an asylum seeker is not in any way less entitled to the protection of that convention than somebody who marries another British subject or, indeed, an Australian, an American or whatever. It is a loss of the right to family life if one loses the protection of the homelessness legislation for marrying one person and not another.

I know that there are certain people within Her Majesty's Government who are becoming increasingly allergic to the European Convention on Human Rights, but this country, under a Conservative Government, did choose to enter and to ratify that convention. I have heard the noble Lord, Lord Renton, in this Chamber explain that he was in part responsible for the drafting of that convention. The noble Lord, for whom I have the greatest respect, is not the sort of

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person Conservatives usually regard as a dangerous ideological foreigner, and what he regarded as fundamental rights I think are rights that we should take extremely seriously.

I am sure that the Minister will reply that the Government are confident that this interpretation is not true. I am no lawyer, and I am not certain, but when the Government say that they are confident we often find that that confidence is misplaced. Sooner or later this will go to court and one hopes that rather more attention will be paid to the court than is being paid to the arguments that we make here tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 165 agreed to.

Clause 166 [Asylum-seekers and their dependants]:

[Amendment No. 265BD not moved.]

Baroness Hamwee moved Amendment No. 265BE:

Page 97, line 15, at end insert ("and
(c) for the purposes of this subsection, a person's claim shall be treated as being finally determined where he is granted a period of exceptional leave to remain in the United Kingdom.").

The noble Baroness said: This amendment seeks to clarify the question of what is the final determination of an asylum claim within Clause 166(2)(b). That provides that a person ceases to be an asylum seeker and therefore ceases to be subject to the disadvantages and disbenefits imposed by the provisions at the time the claim is recorded as having been finally determined or abandoned.

Many asylum seekers are granted exceptional leave to remain, even if they do not achieve full refugee status. Other noble Lords will know the effect of that better than I, but I should like to know the position of those who have been granted exceptional leave to remain although that leave is limited in time--at any rate, initially; it may be extended or become indefinite. If a decision has been made to allow somebody to remain in the UK without restrictions on working or having recourse to public funds, it seems appropriate that that person should not be subject to the effects of Clause 166. I beg to move.

Lord Mackay of Ardbrecknish: Clause 166, among other things, specifies when a person becomes, and ceases to be, an asylum seeker. Clause 166(2)(b) provides that a person ceases to be an asylum seeker when his claim for asylum has been finally determined (or abandoned). Amendment No. 265BE seeks to define "finally determined" as being the point where the asylum seeker is granted a period of exceptional leave to remain in the United Kingdom.

As such, I suspect that this amendment is, if not technically defective, then inaccurate. I understand that a person's claim to asylum is not necessarily finally determined at the point where he is granted exceptional leave to remain in the United Kingdom, since it is open to him at that point to appeal against the decision not to grant him refugee status. Most asylum claims--currently over 80 per. cent.--are

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unsuccessful. Those include exceptional leave to remain cases. Of the remaining 17 per. cent. or so, the majority are exceptional leave to remain cases. I believe that the amendment of the noble Baroness goes a little further than we would and almost implies that if an individual gains exceptional leave to remain he is not allowed to appeal. I know that that is not what the noble Baroness intends.

One of the important things that Clause 166 provides is a mechanism which enables the Home Office to notify local authorities when the asylum claim of a homeless applicant has been finally determined. The authority needs this information to determine what homelessness duty, if any, is owed to the person at that point. It is necessary, therefore, to have a definite point at which asylum claims are considered to be finally determined. In a practical sense this has to be the point at which all avenues of possible appeal have been exhausted. The amendment does not provide for this. Those people who are given exceptional leave to remain, as well as asylum seekers, are eligible for benefit and consideration under the homelessness legislation. I was not entirely sure whether the noble Baroness was casting doubt on that. I am happy to clarify it.

Since in most cases the final determination of an asylum claim does not result in the grant of exceptional leave to remain, I do not think that this amendment is a practical option. I hope that the noble Baroness will withdraw it. I do not believe that the noble Baroness spoke to Amendment No.265BF, and I shall rest my argument at this point.

11.15 p.m.

Baroness Hamwee: I did not seek to suggest that a person who was granted exceptional leave to remain had his further rights of appeal restricted by the amendment. I do not believe that that is what this amendment does. The amendment states,

    "for the purposes of this subsection".
That would not be the only occasion on which there was a notional assumption of a situation to deal with the subject matter of the clause. It has nothing to do with whether or not the asylum seeker can continue with appeals under separate legislation. My point is restricted entirely to that person's position with regard to the homelessness legislation.

The Minister gave a quick assurance. Perhaps I should read it in the Official Report. I do not know whether he can add to it this evening now that I have perhaps explained the amendment a little more fully.

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