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5.15 p.m.

Lord Ackner: My Lords, it is a feature of every system of administration of justice that there should be rights of appeal. In our system, unlike many continental systems, we have both absolute rights of appeal and discretionary rights of appeal. The discretionary right of appeal usually makes provision for some filter system in order to ensure that the right of appeal is not abused. Leave is required from the trial judge or, if he fails to

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give it, leave is then required from the Court of Appeal. A point of law must be raised, a point of law of public importance when it reaches the Appellate Committee of your Lordships' House. That is a normal feature of any administration of justice. You condition the right of appeal, you filter it, by reference to the merits of the right of appeal, by reference to the merits of the case to be the subject matter of the appeal. That is not what is happening in regard to the right of appeal in asylum cases. An entirely arbitrary approach is adopted in order to limit the appeal. If you have access to funds which enable you to survive, you can continue with your appeal. But if you cannot raise money, first because you are not allowed to work and secondly, because there are no charitable sources to support you, then in practice you will lose your right of appeal. As a lawyer and a former member of the Bench, I find it very distasteful that the state should give with one hand a right of appeal and then remove it on the basis that you will be starved of your opportunity to exercise that right of appeal because you are not allowed to work if you seek to exercise your right of appeal and you are not allowed any social security support. I return to where I started. If the right of appeal is to be restricted--and I fully understand that there are many circumstances in which it should be restricted--it should be restricted by reference to the potential merits or demerits of the appeal. It should not be restricted by something quite ulterior; that is, the ability to survive for long enough to enter and argue your appeal. Accordingly, I strongly support the amendment.

Earl Russell: My Lords, my noble friend has spoken for me entirely, as has indeed the noble and learned Lord, whose intervention I very much appreciated. I wish to add two pieces of evidence on the narrow point and one on the wider point. The first concerns a survey of 722 appeal cases between July and December 1995, cases heard by special adjudicators. Even of those cases dismissed, only 16 per cent. were seen as totally incredible. Only a small number of the unsuccessful cases are manifestly unfounded. The second quotation should be familiar to the Minister because he spoke the words himself as recently as 19th June on the Housing Bill. I asked him whether he was able to predict whose appeals would succeed. The Minister said:

    "I was beginning to wonder whether the lateness of the hour was affecting the noble Earl when he asked how I could tell who was going to be successful and who was not. I then realised that he asked the question in order to answer it himself; the answer being, of course, that I could not tell. That is true. If we could tell, we should have been able to make a much finer judgment on the whole question of asylum seekers and their continuing right after they had been turned down by the Home Office for the first time"--[Official Report, 19/6/96; cols. 426-427.]
I could not have expressed the matter better myself. The Minister is admitting that when somebody appeals we do not know whether he will succeed. Therefore, in denying benefit to all those who appeal, we are denying benefit to some genuine refugees as well as to some who are not. The Minster is using a very blunt instrument.

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We have dealt with the general effect of the Bill. I warned the noble Baroness privately as long ago as last December, when the Bill was still in another place, after I had spoken at a protest meeting in Central Hall, that I was alarmed by the damage that the Bill was doing to race relations. I do not seem to have convinced people. I have a very recent report from the Commission for Racial Equality. Mr. Herman Ouseley in his introduction said:

    "Throughout 1995, stories were trailed in the tabloid newspapers about 'asylum seekers', 'illegal immigrants' and 'benefit fraudsters'. The notion of 'bogus' arrivals at British airports has taken root in our folklore and every message reinforces the damaging and false stereotype of immigrants as people who only know a few words of English: 'benefits', 'asylum' and 'lottery handouts'. Combine this with the fact that virtually all the images projected of illegal immigrants and asylum seekers--and these terms now seem to be used interchangeably--are of people with origins in Africa, the Caribbean and Asia and it is little wonder that race relations are sometimes on a knife edge".
The noble Baroness shakes her head. I really do not think that she knows.

5.30 p.m.

Lord Mackay of Ardbrecknish: My Lords, perhaps I should first say to the noble Baroness, Lady Williams, that I am grateful to her for her remarks to my noble friend and myself about our patience. I hope that by showing that I am demonstrating that I appreciate the seriousness of the issues which we are discussing and, indeed, the seriousness with which the noble Baroness, Lady Williams, the noble Baroness, Lady Hollis, and other noble Lords opposite address this issue. Therefore, I accept that plaudit with courtesy and I return it. I understand how deeply she feels about this issue. In fact, the noble Baroness, Lady Williams, told me yesterday in the clearest possible terms that her party would repeal the whole of this Bill and therefore would be quite happy to accept the expenditure of £200 million for this year and next year, perhaps rising to £300 million in the following year. I accept that there is a difference between us. As a Minister for social security and as a Treasury spokesman, I must try to contain the amount of money which my department spends and therefore which must be taken from the British taxpayer.

Lord McIntosh of Haringey: My Lords, would it not be quicker to say New Liberal, new dangers?

Lord Mackay of Ardbrecknish: My Lords, I think it sounds more like old Labour.

Baroness Seear: My Lords, that has been continuing Liberal policy. It is neither new nor old. We are not given to changing our practice.

Lord Mackay of Ardbrecknish: My Lords, I do not think that I should become involved in a discussion about that. But certainly the noble Baroness, Lady Williams, has made her position quite clear and I am quite clear as to where she stands. I must say that the position is not quite as clear in relation to the party

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directly opposite me in this regard because I have not heard any indication that they would repeal this legislation and face the expenditure that I have mentioned, rising to perhaps £300 million in the next three years. That would be extra expenditure and if I understand all the discussions which have been taking place during the past few weeks about what is described as "on the road to the manifesto", it seems to me that if you suggest any increases in spending you must also suggest some savings elsewhere in your budget. I wonder which benefits for British citizens will have to be reduced or removed to cover the £300 million more that the party opposite wishes to spend on those people whose right to asylum turns out to be unfounded. Perhaps I shall hear an answer later on. The noble Baroness, Lady Williams, admitted that there are bogus asylum seekers. She could not do otherwise. If that were not so, it would be suggested that all 55,000 people who came in this year should be granted asylum. I suppose that it would save the Home Office quite a lot of money in administrative costs if that were so but I fear that it would cost my department and the taxpayer a great deal of money into the future. Therefore, I am happy to hear that. There was a suggestion that we apply the convention more narrowly than other countries. Perhaps I may just tell the noble Baroness that it is the courts and the adjudicators who ultimately determine whether we have properly applied the UN convention in each case; in other words, either the court or the adjudicator decides. There have been many challenges to our decisions on appeal and by way of judicial review, but, while we lose the occasional case, we succeed and win the vast majority of those challenges. That leads me to draw the conclusion that we are obeying and applying the terms of the convention in the way intended. It is not just a judgment of us; it is a judgment of the courts and of the adjudicators. I give way to the noble Lord.

Lord Avebury: My Lords, will the Minister agree that, as in the case he mentioned earlier where the adjudicator referred the matter back to the Secretary of State who then granted exceptional leave to remain, it is the Secretary of State and not the courts who determines the application?

Lord Mackay of Ardbrecknish: My Lords, the point is that the adjudicator will have decided that the applicant does not fulfil the criteria for refugee status. If the noble Lord wishes to close the door at that point, so be it. However, I do not believe that he does, and neither do I. In those circumstances the adjudicator can suggest that the Secretary of State ought further to consider the case before a final conclusion is reached. At that point the Secretary of State may decide, in a very few cases after the appeals circuit has been gone through, that exceptional leave to remain should be granted. The majority of cases for ELR are decided by the Home Office in the initial decision-making process when it is decided that a person does not qualify as a refugee. Then, as I said during the last debate, the second question is asked; namely, "Can this person go back to his own country?". In the case of somewhere

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like Somalia, Afghanistan or even the former Yugoslavia, it might be unreasonable to expect him to do so and, therefore, the person would be granted exceptional leave to remain. That is the way the system works. I turn now to the amendment before us. It has two effects. The first would allow benefit to be paid to those people who claim refugee status at the port of entry or within three days of arrival. I suspect that that part of the amendment is redundant; indeed, the noble Baroness did not mention it. In fact, the noble Baroness spoke to the second part of the amendment which would restore benefit entitlement to all those asylum seekers who appeal against an initial adverse decision, except for those whose claims have been certified as being without foundation. I must reject the amendment for the following reasons. All those asylum seekers who would gain access to benefit during the appeals process would already have received a full substantive decision on their asylum claims. That is to say, their cases will have been assessed against the criteria set out in the UN convention. I see no grounds for requiring UK taxpayers to support people who have been found not to be refugees. When I listened to the noble and learned Lord, Lord Ackner, I was not sure whether he was suggesting some serious filter, just as we have in the civil courts and especially in the criminal courts where guilt or innocence is established and where people have the right to appeal. However, not every case can actually go to appeal; indeed, as I understand it, each case has to be filtered before that procedure can be followed. Of course we do not do that. In an asylum case, anyone who wishes to do so can start off the appeal process. Then, in the first instance, it is up to the adjudicator to look at the case and decide whether a correct decision was made at the lower level. I see that the noble and learned Lord wishes to respond. I give way.

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