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Baroness Hollis of Heigham moved, as an amendment to Amendment No. 4, Amendment No. 6:

Line 10, leave out ("and is of a prescribed description") and insert ("other than on his arrival in the United Kingdom or within 3 working days of that arrival").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 12. What the Government did in their regulations of January 1996 and what they are seeking to do now is wrong. The judges have declared that those regulations were not merely wrong as a point of law, although they were fairly stinging about that, but that they were wrong beyond that as a matter of principle. Their judgment in the Court of Appeal sounded a note of moral revulsion to a degree rarely heard in a British court.

As Lord Justice Brown said:

That is the judgment of an appalled judge. He was not alone. The second judge, Lord Justice Waite, said that the Government's regulations and, therefore, these clauses make it,

    "not merely difficult but totally impossible for [asylum seekers] to remain here to pursue those claims".
Even the dissenting judge, Lord Justice Neill, said that the regulations would,

    "have an adverse effect on a significant number of genuine asylum seekers. Some may be obliged to return to conditions of danger. Others"--
these are the words of the dissenting judge--

    "may be obliged to live in penury or to abandon their claims to asylum".
While accepting that the Government may have been within the technical law, even the sole dissenting judge believed that they were outside the moral law of this country.

Why did the judges give such a stinging rebuke to the Government? They argued that the regulations were illegal and that the regulations--and, therefore, the clauses--are indiscriminate; and, indeed, that the regulations and the clauses are immoral. I repeat: illegal, indiscriminate and immoral.

First, the proposed changes are illegal in the narrow sense because the regulations subverted the intention of the 1993 Act and secondary legislation cannot be used to subvert primary legislation. However, it is not just a technical illegality; and the Minister has made much of this. The judges made it very clear that the proposed changes are illegal in a wider sense because they will run counter to our abidance by the European convention and to our treaty obligations.

Article 23 of the UN convention on refugees of 1951 states that contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded their nationals. That article is precisely what the Government are failing to observe. The change is illegal.

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Secondly, the court made clear that the proposed action was indiscriminate because, under the clauses, and with the regulations, the Government would be denying benefit to those who are genuine asylum seekers as well as those who are not. The Government give benefit to those who are not genuine if they apply at the port of entry but they deny it to those who are genuine if they apply in country. That is indiscriminate, and the judges said that it is wrong.

Thirdly, it is immoral. The regulations and the clauses deny to genuine asylum seekers any meaningful right to pursue their claim. Their choice is between destitution in the UK or detention in their country of origin. As Lord Justice Waite said, that right to pursue their claim is valueless and empty if they cannot survive to pursue it.

Are we saying in this country that people are guilty and not entitled to receive benefit until they prove they are innocent and then denying them the means on which to live while they do so? Are we comfortable with that reading of British justice--guilty until proven innocent with no means of subsistence to enable one to prove one's innocence? Is that our way of life? I repeat, the Court of Appeal's judgment was not merely a technical one under the law; indeed, it reflected a sense of revulsion and outrage against a government policy which has subverted an age-old and worldwide right to asylum.

There can only be one right way to proceed; namely, to ensure that everyone entitled to benefit receives it. We can only know whether people are entitled when we determine their claims. We should separate the deserving, if you like, from the undeserving on grounds of justice, and not on grounds of government convenience which is all that the port of entry test represents.

All of us in the House know that the right way to proceed is to speed up the hearings, not to starve asylum seekers out of them. Other countries determine such applications far more rapidly than we do. Indeed, we are taking 19 months from the determination of the first hearing of new claims; and, indeed, we are getting worse, not better, adding something like 2,000 cases every month to the backlog.

The Court of Appeal made it clear that the Government should provide a basic means of subsistence, if not the full range of benefits, until a claim is determined. Otherwise, what we will see is a Home Office which fails to do its job of securing justice and which, instead, is relying on the DSS to do its work for it. Because we do not offer asylum seekers justice, the DSS will not offer them benefit; because the Home Office will not resolve their claims in decent time, the DSS is seeking to deter those claims on social security grounds; and, because we do not hear applications when we should, instead we deny asylum seekers the means of surviving until we do. In all fairness and in all decency, whose fault is that? Is it the asylum seeker who seeks asylum, or the system which will not hear his application in time?

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With this amendment we are not saying that all asylum seekers should receive benefit; we are merely saying that anyone who applies for asylum within three working days of arrival in this country under Amendment No. 6, or seven days under Amendment No. 12, should be treated as though he had applied at the port of entry. No one believes that we should be giving full benefits to economic migrants, students or businessmen who have been in this country for three years. But surely no one believes that someone applying within three days of arrival should be treated as an economic migrant and as though he were a businessman. The question is: is the Government's port of entry test a reasonable one?

I ask Members of the Committee to try to imagine for a moment that they are living in a country, fearing persecution, where the police are accountable to no one, and where official power is arbitrary, frightening and absolute. It is a country where one has no rights at law and no trust in any legal system and where to leave that country one would have to falsify one's papers. Such a person may arrive in this country and may not speak the language. What should he do? What would Members of the Committee advise a son or grandson to do in such circumstances? I would tell my son to get into the country and be safe. I would say to him, "Don't stop at the borders. Get into the country, then apply for asylum." In all honesty and in all honour would any Member of this Committee advise his son or grandson to act differently? I think not.

Since February 1996, the Medical Foundation has seen 45 clients who were refused benefit. They did not apply at the port of entry, though most of them applied within a few days of arrival. Why did they not apply at the port of entry? The reasons given were: first, they were frightened that immigration would send them back; secondly, they wished to get the advice of a lawyer or a friend because they were terrified; and, thirdly, they relied on the advice of an agent who either abandoned or misled them. Therefore, they applied three days later and not at the port of entry.

However, the port of entry test does some things. It distinguishes between those who are confident and apply and those who are frightened and who do not dare. It distinguishes between those who speak English and those who do not; those who are fit and healthy and those who are not; and those who know the system--perhaps even know how to work it--and those who do not. What the port of entry test does not do is distinguish between the genuine and the fraudulent. Government Ministers have never shown at any stage in our debates, in Committee, during Report stage or, indeed, today, that the port of entry test is a genuine test designed to distinguish between the genuine and the fraudulent.

The facts are on our side. In the past six months 205 people who applied at the port of entry won asylum or exceptional leave to remain. Double that number--440--who applied in country, without of course the right to benefit, won their right to asylum or leave to remain. Thirty per cent. of all asylum seekers either obtain asylum or exceptional leave to remain or win an appeal. The majority of those obtain it once they have entered this country.

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This amendment is modest. It suggests that within three working days of arriving in this country one should be treated as if one is applying at the port of entry. Three days is not a long period but it probably helps those most deserving of all--those who are true asylum seekers and who have fled conditions so bad that they cannot trust a system which requires them to report at the port of entry. Are we talking about many people? Only a few days ago the Minister said that 15 per cent. only apply in country within one week. This amendment would not add to the number of people who are entitled to remain. However, it may produce a slightly better fit between those who turn out to be genuine asylum seekers and those who get benefit. Is that too much to ask? This amendment in all fairness and in all decency tries to mitigate the worst effects of the Government's bogus test. It does not do much but it will, however, help a little. That is why we move it today. I beg to move.

3.45 p.m.

Earl Russell: Before developing an argument on a matter which may at moments, I fear, become a little heated, it is my great pleasure to be able to give thanks to both Ministers on the Government Front Bench. I thank the noble Baroness--and through her, her officials--for putting right a case of over-zealous enforcement I brought to their attention as recently as late last Wednesday. That is a great pleasure and I thank them warmly. I thank the noble Lord, Lord Mackay of Ardbrecknish, for the concession to students embodied in the amendment he has just moved, which embodies an undertaking he gave me at the Committee stage of this Bill. I thank him warmly for that too.

Before getting into the legal arguments on which I wish to spend most of my time, I wish to touch on some of the arguments that the Minister has developed. He has developed--as I suppose one might have expected--all the arguments about the flood of bogus asylum seekers and the increasing proportion of refusals. I spent most of the first day of Committee on this Bill answering those arguments. I shall not detain your Lordships long with them now. I shall merely quote one example I then used of an asylum seeker from Zaire who was told, "Your description of the soldiers breaking into your house firing wildly in all directions seems to be proof that they were not attempting to seek your life". I do not believe that that person was a bogus asylum seeker. I shall go no further on that point.

On the level of benefits, I wish to quote from paragraph 29 of the report of the Social Security Advisory Committee on these regulations which states:

    "Doubts were expressed about the suggestion that the availability of social security benefits is a significant reason for attraction to the UK. Many respondents said that, in their experience, the reputation of this country for fairness, or historic ties between Britain and the applicants' country of origin are much stronger 'pull factors' for asylum seekers. Several of them quoted Home Office research"--
from the Home Office Statistical Bulletin 15/95, table 5.1--

    "which suggests that many refugees and those granted exceptional leave to remain are well-educated and enjoyed a better standard of living before leaving their own country".

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There was considerable noise exchanged between the other two Front Benches on whether in-country or port applicants enjoy a greater rate of success. I quote the observation of Lord Justice Simon Brown in the Court of Appeal:

    "As for the statistics, these appear to show no significant difference in the rate of recognition as refugees between those applying on arrival ... and those who apply after entry".
I am prepared to accept the learned judge's ruling.

In supporting this amendment I argue that it may save the Minister a great deal of future legal trouble. Before this Chamber agrees to reverse the Court of Appeal's judgment, it is important that we should understand exactly what that judgment stated. It stated that the regulations were ultra vires because they conflicted with another Act of Parliament and therefore primary legislation could put the matter straight. As far as that goes it is a correct analysis. But what we would not have guessed from listening to the Minister is what that enactment was that the Court of Appeal believed conflicted with the regulations. It was Sections 2 and 6 of the Asylum and Immigration Appeals Act 1993. That Act not merely guarantees the very right to seek asylum itself; it also incorporates in British law the UN Convention on Refugees of 1951.

What the Court of Appeal found was that those regulations threatened the very right to seek asylum itself. At every stage of the Bill from the speech of the noble Baroness at Second Reading onwards we have had assurances that nothing in this Bill was likely to threaten the rights of genuine asylum seekers. The Court of Appeal found otherwise. Lord Justice Simon Brown stated:

    "A significant number of genuine asylum seekers now find themselves faced with a bleak choice: whether to remain here destitute and homeless until their claims are finally determined or whether instead to abandon their claims and return to face the very persecution they have fled".
That was what the Court of Appeal found; that the regulations threatened the very right to seek asylum itself.

Parliament can do whatever it likes. If Parliament chooses to repeal Section 2 of the 1993 Act and to disincorporate the UN Convention from British law, Parliament may do so. But the Government have not asked Parliament to do so. Parliament has asked us to say that a contradiction is not a contradiction. That is something that even the sovereign power of Parliament cannot do. If, like the old lady in the Agatha Christie novel, Parliament were to insist on dividing something into four equal thirds, the courts would be guilty of no disrespect for parliamentary sovereignty if they failed to do so.

The question whether one Act of Parliament contradicts another is not a question for the Government. It is not even a question for Parliament. It is a question for the courts. The Government are trying to assure us that a contradiction is not a contradiction. I am not quite sure that they can do that. It is going to produce an interesting case. I would give the Government the advice my American lawyer once gave me: never be a lawyer's interesting case. The Government may well say that the later Act of

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Parliament takes priority over the earlier one. So in normal circumstances it does, but that rule is not invariable. There can hypothetically be exceptions to it. In this case I do not believe that it applies, because if one looks at line 14 of Amendment No. 4 and at lines 41 to 42 of Amendment No. 4, one can see that they also uphold the convention. The amendment states that,

    "'claim for asylum' and 'the Convention' have the same meanings as in the 1993 Act".
In other words, the amendment contradicts itself. It is felo de se. Therefore the courts will have to decide which part of the amendment Parliament meant. I do not envy them that choice.

I do not think that the Government can get out of the dilemma in the only way which would logically have saved them, by repealing Section 2 of the 1993 Act: first, because of the assurances that I have quoted; secondly, because I believe that there is no majority in either House of the present Parliament for such a course; and, thirdly, because that would not get rid of our obligations under international law. I believe it is understood that it may be an act of aggression against another country to send a large flood of destitute refugees into that country's territory rather than accept them in our own. Another country might have a ground of action before the International Court of Justice if it believed that we were doing so. In the present world we are not plentifully equipped with friends. I can imagine such a case being brought.

Under Section 23 (which the noble Baroness, Lady Hollis of Heigham, quoted) and Article 24 of the UN Convention on the Rights of Refugees, refugees enjoy a right to support and to social security. Lord Justice Simon Brown referred to the clause, but was wrongly persuaded by Treasury Counsel that the word "refugee" applied only after people had come into the country. It is made clear by the UNHCR that in any matter to do with the UN convention the definition of refugee applies from the moment of asking for asylum. That was accepted in the Court of Appeal in 1993 by Lord Justice Nolan (as he then was). I have the quotation beside me. The noble and learned Lord upheld exactly the meaning of the word "refugee" which the UNHCR recommends: that it applies from the moment of claiming asylum. Indeed, that is the meaning which applies in this amendment. A person becomes a refugee when his claim is recorded by the Secretary of State within the meaning of the convention. Under that reading, which has the authority of a learned judge in the Court of Appeal, and one who enjoys the greatest respect, that is another reason and another possible ground of action for saying that we are in breach of obligations.

I am aware of the Brind case. I am aware that international obligations are not enforceable in a British court. But in this case they are incorporated. My submission is that before the Government can do what they seek to do they must disincorporate those obligations. The legal advice that I have been given is that we are in uncharted waters; I understand that the point has never been argued. But it might be ruled that when an international obligation has been incorporated

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by legislation in British law, Parliament can disapply it only in express words. That argument would have the great advantage of tending to certainty. Were such an argument to be put before the courts I should listen to it with great interest.

We have here a very serious matter. Judging in the Appellate Committee of this House in 1986, the noble and learned Lord, Lord Bridge of Harwich, said that in matters which may involve a risk to life decisions should be taken only after the most careful and anxious scrutiny. I hope that that argument is as true in this Chamber as it is in your Lordships' Appellate Committee.

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