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Lord Mackay of Ardbrecknish: My Lords, under the homelessness legislation families and other vulnerable individuals who lose their home through no fault of their own are provided with a proper safety net. It is one component of a wider set of welfare provisions that we have in place to help people through a crisis and to continue their normal lives. This legislation focuses naturally and rightly on those people who are settled in this country. People who have sought and gained entry

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to this country on the grounds that they will have "no recourse to public funds" are not entitled to set aside that undertaking and obtain benefits which are, quite rightly, available to those people who are settled in this country.

I know that it does not seem to be persuading Members of the parties opposite that people have said they will have no recourse to public funds. It seems that that can be set aside just with the wave of a hand. However, it is an important point to bear in mind. Most of the people to whom we refer have come into this country without applying for asylum at the port of entry on the basis that they want no recourse to public funds. One must try to take them at their face value and assume they meant what they said to the officers at the port of entry. On that basis "public funds" includes money that comes, for example, from the Benefits Agency or from a local authority regarding the homelessness legislation. So I do think there is a very firm base in understanding that

Earl Russell: Perhaps I may ask the Minister a question. Suppose he should break a leg in the Cairngorms in winter, a helicopter comes to rescue him, and those in the helicopter ask him, before taking him aboard, for an undertaking that the rescue will be no charge on public funds. Would he regard that promise as obtained under duress?

Lord Mackay of Ardbrecknish: My Lords, as I do not go climbing in the winter or at any other time, the noble Earl's clever question is not relevant. It would lead me into a false comparison. I shall simply not enter into it. We are talking not about British citizens climbing the Cairngorms but about people who came here saying they would have no recourse to public funds while they were here for a limited period. I at least can see a considerable difference in the two questions which makes no read-across possible between the answer to one and the answer to the other. I am sorry to disappoint the noble Earl, but I do not intend to follow him down that particular road.

People who have obtained leave to enter the country would have to satisfy the immigration control that they had the resources to maintain themselves during their stay in the country. The rules state clearly that an application for assistance under the homelessness legislation falls within the definition of public funds. The Home Office is entitled to cancel the leave to remain granted to anyone who entered the country lawfully, but who subsequently breached an undertaking not to have recourse to public funds.

As I explained earlier in Committee, the principle behind the provisions in subsection (2) is not new. The Court of Appeal ruled (in the Tower Hamlets case, in 1993) that a person who is not lawfully in the country because he entered it illegally, or has overstayed his leave, is not entitled to assistance under the homelessness legislation. To that extent what we are doing here is no more than translating a well established principle in the homelessness legislation.

Earl Russell: My Lords, I beg the Minister's pardon. I am most grateful to him for giving way. He quoted the

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Tower Hamlets case, which I mentioned in Committee. I hope, therefore, that he is not suggesting that asylum seekers and illegal entrants are the same.

11 p.m

Lord Mackay of Ardbrecknish: No, my Lords, I believe I said quite clearly--if I did not, I meant to do so and the record will show whether or not I did--that the Tower Hamlets case showed that a person who is not lawfully in the country because he entered it illegally, or has overstayed his leave, is not entitled to assistance under the homelessness legislation. So we are dealing with those categories; but we are also dealing with those people who sought entry and were given entry to this country on the grounds that they would have no recourse to public funds.

The noble Lord, Lord Dubs, asked me a number of questions. He postulated a number of tragedies and disasters of various kinds and asked what would happen in those circumstances. I do not feel that those events change the fundamental point that the person came to this country on limited leave with no recourse to public funds. I suggest that if I went to a foreign country for a limited period and something happened to me, I should probably try to make my way back to this country as quickly as I could. I suggest that people have that option. They can return to their country of origin or make other arrangements with friends, family or whoever it may be, if they want to stay in this country and deal with the problem that has overcome them.

I was also asked about asylum seekers who apply for asylum at the port of entry and have been granted benefit and dealt with under the homelessness legislation. Then comes the day on which they are turned down--it is well worth remembering that five out of every 100 are accepted--and they appeal. At that point their right to benefit stops, as indeed does their right to be considered by the local housing authority under the homelessness legislation. If they decide to stay in this country to await the outcome of an appeal, anybody giving them advice ought to be looking very carefully at the success rate of appeals, which is three out of every 100.

Baroness Williams of Crosby: My Lords, the Minister has now repeated twice the figure of 3 per cent. of people being accepted. He will know that there is a further substantial additional number who are given exceptional leave to remain here. Will he be kind enough to tell us how the legislation that we are now discussing with regard to housing will apply to those who receive exceptional leave to remain, which is an additional 19 per cent. or so of all those who apply for asylum?

Lord Mackay of Ardbrecknish: My Lords, exceptional leave to remain, which is granted initially for a limited period and has to be renewed every now and then, is not the same as asylum. After all, all the arguments have been about asylum.

In 1995, 16 per cent. were granted exceptional leave to remain. That is the outcome of the Home Office asylum decisions. But the fact still remains that 81 per

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cent. of all the people who start off gain neither of those categories. So we are still talking about a great number of people who are found not to be eligible for either the asylum test or exceptional leave to remain. And 80 per cent. is a lot of people. I shall not go into the argument tonight that I shall probably use next Monday. But if any other part of the benefit system were paying out to people, and it was found after investigation that 80 per cent. of them were not qualified to receive that benefit, I should be in quite some difficulty at this Dispatch Box. Indeed, I should be and quite rightly so. We have to remember those figures and, if we look at them over the past year or two, 80 per cent. roughly is a great many people. Most of the exceptional leave to remain cases, as I understand it, are actually granted in the first instance by the Home Office.

I was talking about appeals; that is the question about which I was asked. I would be advising people that their chances of winning an appeal in this country were pretty slim and that they would perhaps do better to return to their country of origin rather than stay here and appeal. With regard to the question asked by the noble Lord, Lord Dubs, they would cease to be eligible under the homelessness legislation and therefore, if they decided against the odds that I have just indicated to remain here and appeal, then they would have to look for other accommodation. For example, they might have to look to the local ethnic community with which they are associated, or to the voluntary sector. If they have children then they can look to the Social Services Department for assistance under the Children Act.

Frankly, unless their case is extraordinarily strong, my advice would be that they should consider returning home. As I mentioned earlier this afternoon, my right honourable friend the Secretary of State intends to bring forward measures which will mean that anybody who eventually gains asylum will be able to look back to the date of their original claim. If they were either an in-country applicant or an appeal applicant, they would be able to receive the benefit due to them back to the date of their claim. A voluntary organisation, therefore, which thought there was a particularly strong case could see that, if its judgment was correct, it would receive some of the money back it had used to help the applicant.

To return to the questions, either the noble Lord, Lord Dubs, or the noble Earl, Lord Russell--or both--asked if we were looking at the words in this clause against the background of the Court of Appeal's judgment. We are obviously reflecting carefully on the judgment with regard to a number of issues, one of which is to ensure that we have the wording in this clause correct.

The noble Earl, Lord Russell, talked about children in care. I answered this question the last time. He asked whether, if children were involved, they would have to be taken into care. I made it clear the last time that the local authority, in furtherance of its duty under the Children Act, may decide that housing the family is the best solution to the children's problems. They do not necessarily have to decide that the children must go into care. There are other options, including the one I have just mentioned, open to them.

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The noble Earl also asked about the Housing Bill and this Bill. The point is that this Bill will, we trust, be commenced ahead of the Housing Bill. Though the noble Earl does not agree with what we are doing, he understands that if we are doing what we are doing, we need to align the homelessness legislation with the benefits legislation as quickly as possible. We will not repeal everything regarding Clauses 9 and 10 in this Bill and when the homelessness Bill comes in there are probably one or two provisions that we will not repeal in that.

I was also asked about local government finance and threshholds. Threshholds of this kind are quite usual in local government finance. The well-known "Bellwin" principle in meeting a range of disasters has a threshhold.

I was asked if Clause 9(2)(b) disentitles British citizens. It does not. A UK citizen with an asylum-seeking wife and UK-born children will be entitled to assistance under the legislation. As a single person he would not be, but the children and the wife, despite the fact that they may be asylum seeking, will entitle him to be considered under the homelessness legislation.

I believe that I have answered almost every question, but I want to make one point again, which I know that the noble Earl does not agree with because he believes the opposite. A UK citizen appealing against a decision as regards the benefits system does not receive benefit during the course of that appeal. I have said that I do not believe that it is a good argument from me to the noble Earl because he believes that everyone ought to receive benefits during the course of an appeal throughout the whole benefits system. I hope I am not being unfair to the noble Earl. He indicates that that is indeed what he believes.

I am not going to argue about that tonight, but that is not the case at present. We certainly have no proposals to change the situation and I am not sure whether the main party opposite has any proposals to change the provisions in the way that the noble Earl would like. But we certainly have none. As UK citizens do not get benefit during the course of their appeal, frankly, we do not believe that it is fair or logical that people claiming asylum should get benefit during their appeal. Therefore, the decision that we are making on that issue actually squares asylum seekers with UK residents. I hope that I have answered the points which have been put to me and explained why we cannot accept this amendment. I hope that the noble Lord will withdraw it.

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