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Earl Russell: Perhaps I might assist the noble Baroness. I have obtained some figures on applications for asylum per million of population in 1995. The source is the noble Baroness, Lady Blatch, in a Written Answer: the United Kingdom, 1,000; France, 400; the Netherlands, 1,900; and Germany, 2,100. Does the noble Baroness agree that those figures call for the Minister to think again?

Baroness Hollis of Heigham: My Lords, I am very grateful for that contribution. I encourage the Minister to comment on those figures.

So not only are we tardy, dilatory and ineffient, but we are far more so on all three counts than are our European neighbours, for which the noble Earl, Lord

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Russell, contributed the figures. I hope that the Minister is not as complacent about such dilatoriness when it costs people their basic means of subsistence as he is in other areas of social security where fraud, error, over-payment and under-payment continue to mount. However, as I said, there are other issues that we shall wish to explore. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 9:

Page 8, line 28, at end insert--
("( ) This section does not apply to a person who has made a claim for asylum where the evidence adduced in support of the claim establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he would be sent.").

The noble Lord said: My Lords, I am grateful for the last few minutes of debate on the previous amendment. It showed, as we have attempted to show all through our consideration of the Bill, that the fundamental objection to the short procedure, the certification provided for in Clause 1 of the Bill, is not that it is wrong to speed up applications or appeals--of course it is desirable to speed up applications and appeals; it is desirable to have enough people to do that--but that it is unjust. The United Nations High Commissioner for Refugees said:

    "the more accelerated a procedure, the higher the risk that an erroneous decision will be made".
The research project that was commissioned by the Refugee Council on these procedures confirmed that,

    "Many genuine refugees will not be identifiable as a result".
These are the dangers of injustice to which we have pointed at all stages of the Bill.

Amendment No. 9 uses the wording that the Government themselves, under pressure, inserted in Clause 1 to seek to extend the protection provided by subsection (5) of Clause 1 to victims of torture to those who would now be denied benefits under Clause 11, the new clause introduced yesterday.

Those noble Lords who voted by such a large majority to protect the victims of torture from the risks of an accelerated procedure under Clause 1 should, I suggest, be even more keen to ensure that those victims of torture are not put in a position of destitution as a result of the provisions of Clause 11 of the Bill, ruled so recently by the Court of Appeal to be illegal.

The Government cannot object to the wording of the amendment because it is their wording; it is the wording they persuaded the right reverend Prelate the Bishop of Liverpool and his colleagues was an appropriate alternative to the wording which had been carried by a large majority in Committee on the Bill. We are not entirely happy with the wording. We still think that the risk of torture in a country or territory to which a person would be sent misses the point we were seeking to achieve which is torture in the country he came from, which may not always be the same. But we have, I think the House will agree, played safe and made sure that we are free of criticism by using the wording which the Government themselves have devised.

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The principle, however, is very clear. The principle must surely be that if we are concerned with victims of torture, since we have agreed, as the Government have now agreed, that they should be protected from the risks of an accelerated procedure under Clause 1, how much more so do we need to be satisfied that they are not punished under Clause 11 of the Bill by the denial of benefits and by the threat of destitution? I beg to move.

Lord Mackay of Ardbrecknish: My Lords, all sides of the House agree that torture is utterly repugnant. My noble friend Lady Blatch acknowledged that the will of the House expressed in Committee was that there should be a safeguard on the face of the Bill to exempt genuine victims of torture from the special appeals procedure. My noble friend brought forward amendments at Report stage to give effect to the will of the House but to reduce the scope for exploitation of the asylum system by people who would seek to circumvent our procedures by claiming to be victims of torture.

I accept that the amendment now before the House in the name of the noble Lord, Lord McIntosh of Haringey, uses a similar form of words to the torture exemption in Clause 1. But it does not follow that what is appropriate in the context of Clause 1 is appropriate in the context of benefit entitlement. The amendment cannot and does not purport to apply to torture victims until a decision is made on their asylum application. It is not possible to establish whether there is a reasonable likelihood that someone has suffered torture until their claim has been assessed. The amendment is therefore only concerned with torture victims who have been refused asylum and are appealing against that decision.

If the Home Office, in assessing an asylum claim, finds there is a reasonable likelihood that the applicant has been tortured, then in the great majority of cases it will, of course, grant asylum or exceptional leave to remain. It may be that an applicant has been tortured on account of his race, religion, nationality, membership of a particular social group, or political opinion. In that case he would almost certainly be recognised as a refugee. A person who has been tortured but does not have a well-founded fear of persecution for a reason specified in the 1951 convention would normally be granted exceptional leave to remain.

If the applicant is granted asylum or exceptional leave, he will from that point on be entitled to benefits on the same basis as a British national. So if an applicant can demonstrate at the initial decision stage that there is a reasonable likelihood that he has been tortured, then in the great majority of cases he will receive benefit. The amendment, of course, does nothing to help this particular group.

If the applicant cannot adduce evidence which establishes a reasonable likelihood that he has been tortured, the amendment does not assist him. It would not confer benefit entitlement on an appellant unless he had succeeded in demonstrating there was a reasonable likelihood that he had been tortured. So the amendment would genuinely assist only the small group of people who can demonstrate at the initial decision stage that

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there is a reasonable likelihood that they have been tortured but who are nevertheless refused asylum and exceptional leave.

4.15 p.m.

Baroness Williams of Crosby: My Lords, I am grateful to the noble Lord for giving way. I shall only detain him for a moment. Last night one of the issues we discussed at some length with his noble friend Lady Blatch was how one established that one had been tortured and whether there would be time, for example, to obtain adequate medical evidence to show one way or the other. Part of the purpose of the amendment, which I strongly support, is to try to ensure that such an applicant, in what might be a period extending to a couple of weeks--beyond the original three days--would be sustained while he was obtaining the evidence to show his case one way or the other. The noble Lord will appreciate that obtaining evidence in three days is almost impossible.

Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure what that intervention means. If someone applies at the port of entry for asylum and the grounds are that they have been tortured, then, as noble Baroness, Lady Hollis, told us in the last amendment, it will be some months before their case comes to be decided. I would have thought that there is more than enough time for them to obtain any necessary medical evidence in order to substantiate the claim they made on arrival. Without prejudging what I shall do about it, even if someone applies for asylum within the three days that your Lordships imposed on my amendment yesterday, then that person will be eligible for benefit up until the point at which the Home Office makes a decision. So I do not understand the noble Baroness's problem. I do not understand it in the context of what I would like the law to be, namely, on arrival, and I do not even understand it in the context of the change made by the Opposition that it is on arrival or plus three days. I do not agree with the noble Baroness that such a person will only have three days to find the medical evidence. Once they apply for asylum they will have that amount of time between that day and the time that their case is examined to put together the medical evidence.

There may be some people, as I was saying, who are refused asylum or exceptional leave, but there will always be good reason for that. It may be, for example, that there are changed circumstances in their country of origin and that, indeed, the party they support has come to power. Now, if you have come to this country and said, "I am being persecuted because 'x' party is in power and they don't like my party" and subsequently 'x' party loses power and your party wins, it does not seem to me that you can actually continue to pursue your asylum application.

I have to let the House into what I was going to say is a small secret but it is not actually a secret. Perhaps I can tell your Lordships there are some applicants from Pakistan who find themselves in exactly that position. I find it interesting to know how you can continue to say that you may be persecuted for your political beliefs

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if your party has actually gained power over the opposition, and that in a free election too in the country I have just given as an example--not that I think there would be any examples of torture from Pakistan. However, I instance it as a case where people continue their asylum application after their own party has gained power.

There could be an increased incentive to make allegations of torture in an attempt to gain access to the benefit system. That is another build-in of delay that people can make. The noble and learned Lord, Lord Donaldson, said yesterday, when describing asylum applications from in-country applicants, that it was the trump card in their back pocket that they played after they had been here for quite a time, had used up their money, and said, "I would quite like to stay here". This proposal would give them a second trump card. They could play the trump card for asylum; they could then play another trump card and say, "Ah, but I was tortured".

I do not think that we need to put this test into the benefit system. The principal test that should be applied to asylum seekers is the test applied by the Home Office. The Home Office makes a decision. The Home Office has to consider whether the application for asylum is justified. If it is justified, then in seven out of 100 cases it grants that asylum. If there are other circumstances--there are many and they do not just include torture--and we decide to give exceptional leave to remain, we give that. I do not believe that to put a kind of second tier arrangement on the benefit system is right or sensible. It is right and proper that we leave these issues to be determined by the principal question to be answered: does this person justify being granted asylum in this country or indeed exceptional leave to remain? If the answer to those two questions is yes, for whatever reason, they can obtain access to all the benefit systems in exactly the same way as British citizens. I do not believe that it is sensible to apply another, further test to the benefit system.

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