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3.30 p.m.

Lord Mackay of Ardbrecknish: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 24B to Lords Amendment No. 24.

Moved, That the House do agree with the Commons in their Amendment No. 24B to Lords Amendment No. 24.--(Lord Mackay of Ardbrecknish.)



At end insert ("and insert--

"(1A) An asylum seeker (as defined in regulations) who--
(a) makes a claim for asylum within three working days of the day of his arrival in the United Kingdom; and
(b) is able to satisfy the Secretary of State as to the date of his arrival in the United Kingdom,
shall for all purposes be treated as if he had made a claim for asylum immediately upon his arrival in the United Kingdom."").

Lord McIntosh of Haringey: My Lords, I beg to move as an amendment to Commons Amendment No. 24B, Amendment No. 24BA. The Minister, in addressing the first amendment in this group of amendments, told your Lordships that the matter has been before this House six times and before the House of Commons four times. That is stretching it a bit. The House will recall that the Government's intention to implement these changes by order was ruled to be unlawful by the Court of Appeal between the Report stage and Third Reading in this House, the Bill having already passed through all its stages in the House of Commons. Therefore, in order to make lawful what had been declared unlawful, the Government were obliged to bring amendments to the Bill in the form of a new clause, at Third Reading--in other words, at the last stage in the second Chamber.

Under pressure--and it was only under pressure--they agreed to a recommitment of this part of the Bill so that the matter could be discussed with rather more freedom than was possible at Third Reading. Under pressure--and only under pressure--they agreed that the Third Reading should not take place on the same

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day as the Committee on recommitment. Therefore, as far as the Government are concerned, these precise measures have been debated only once in your Lordships' House, and the Opposition succeeded in achieving a little more--a very modest amount more--flexibility. Of course, earlier versions of the regulations had been debated before by the House of Commons but these amendments were considered only once--on Monday last--on a consideration of a Lords amendment.

This is a revising chamber. In the classical expression of the duties of a revising chamber, it is the responsibility of this House to ask another place to think again. That is exactly what is proposed in the amendment before your Lordships today. The House of Commons has had only one opportunity to consider this matter. I seek to show--and believe I can show--that the basis of that debate was considerably mistaken and that a much better debate on the amendment which is now before the House can take place.

It is entirely proper--without in any way challenging the primary right of the elected Chamber to have its way in the end--to say to the House of Commons that on this occasion it is possible to do better, either than we did in our first amendments or than it did when it considered the matter for the first time on 15th July.

The whole basis upon which the Government are approaching this matter is based on a fallacy. The fallacy is that there is something more genuine about an asylum application at the port of entry rather than a subsequent application. We all know that there will be--as the Government persist in calling them--bogus applications. At any time there will be people who will seek economic rather than political asylum, but that can happen whether at the port of entry or later.

But the evidence of the success of applications for asylum goes, if anything, in the other direction. In the first four months of this year there were 775 successful applications for asylum, of which 610 were in-country applications--in other words, after the time of entry--and only 165 were made at the port of entry. It may be said that the first four months of this year were not typical, but in every single one of the past four years the proportion of in-country applicants who, in the end, are granted asylum or exceptional leave to remain is higher than the comparable proportion of applications at the port of entry.

It must be abundantly clear from the evidence that a comparison between in-country applications and port of entry applications does not in any way form a distinction between genuine and bogus applications.

What the Government are doing, at the very best, is a crude attempt to cut down on the number of applications by starving people out--that is what it comes to--without regard to the justice of those applications and without regard to the likelihood of them succeeding. The Secretary of State for Social Security, Mr. Lilley, was of course addressing a rather different amendment when he made his speech to the House of Commons last Monday. It is nevertheless necessary to

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consider in detail the arguments that he put and to consider the way in which they are answered by the amendment before your Lordships today.

The first point he made concerned illegal immigrants. He went on about illegal immigrants. In common parlance everyone knows what illegal immigrants are. Illegal immigrants are people who come in in small boats off the coast of Dorset, or in containers. The term used in immigration law is nothing to do with illegal immigrants; it is illegal entrants. The Secretary of State appears to mean people who say something different when they arrive to what they said before, or say subsequently.

The vast majority of people who reach this country at all--whether or not they tell the truth about being asylum applicants when they arrive here--have had to do something in order to reach our shores in the first place. They have had to tell lies to someone to get out of their countries and to obtain a visa for this country which gets them onto a plane or a ship and into the tender hands of our immigration officials at the port of entry. However, the Secretary of State seems to think there is something magical about the words "illegal immigrants" which applies only to those people who arrive in this country and do not immediately declare themselves to be asylum seekers. He also made the point--which was valid for the previous amendment--that there is no secure way of telling whether someone has arrived in this country within the relevant past three days. I acknowledge that point. It could have been amended by a further amendment in the House of Commons. It has been corrected by our amendment which requires that the asylum seeker,

    "is able to satisfy the Secretary of State as to the date of his arrival in the United Kingdom".
He could do that by means of a passport stamp, a travel document or other means, but it is the Secretary of State who has to be satisfied. The onus is entirely on the asylum seeker. If it is argued that there might be an appeal to the social security appeals tribunal--although I notice the Minister did not make that point--the appeal can only be made on a matter of fact. I remind the House that benefit is not payable while that appeal is awaiting decision.

The second point the Secretary of State made was that somehow the availability of immigration law appeal rights would stop the Government from returning an applicant to a safe third country. The amendment deals with that point by stating that the asylum seeker,

    "shall for all purposes be treated as if he had made a claim for asylum immediately upon his arrival".
In other words, he has no rights other than asylum rights. He certainly has no rights beyond those of any port of entry asylum seeker. It has been confirmed by learned counsel that this means that a claimant who takes advantage of this amendment could indeed be returned to a safe third country. The only right gained under this amendment is the right to benefit. That right to benefit is, of course, means tested. I shall return to that matter.

Mr. Lilley also said that the Government are not allowed to discriminate against illegal immigrants under the terms of the Geneva Convention. That is indeed the

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case. I remind the House that the Geneva Convention states specifically that unorthodox or even illegal means of exit or entry should not debar an applicant from the right to apply for asylum, or indeed to be given asylum. There is no distinction at all as regards discrimination against illegal immigrants or illegal applicants in the amendment as drafted.

Mr. Lilley made a point of referring to the availability of benefit throughout the appeal process as well as regarding the original application. Our amendment removed the discretion for the Government to apply regulations to make sure that that was not the case. It was never our intention that benefit should be paid throughout an appeal process. As Ministers made clear in response to a later amendment, that would have been an open invitation to everyone to appeal. Therefore the amendment before the House today describes an asylum seeker "as defined in regulations". In other words, it returns to the Secretary of State and the Government the power to insist that those who appeal against an adverse decision are not therefore entitled to benefit.

The Secretary of State--and the Minister today--talked about the means of support which an applicant may claim to have when he comes to this country and subsequently makes an asylum application. I remind the House that these benefits are means tested. Mr. Lilley confirmed that to the House of Commons last Monday. If the applicant has convinced immigration officials that he has adequate means of support, he will not obtain benefit when he comes to this country. If that is not the case, the investigation carried out by immigration officials at the port of entry is not detailed enough and is based on inadequate evidence. The benefit is based entirely on a means test and those who have means of support--and can show they have means of support--will not get benefit. Every single argument that the Government have put against our previous amendments is either not true or has been answered in the amendment which is before your Lordships today.

The Minister may point to the cost of these amendments. The figure has varied a great deal. It started at £80 million a year on the basis that it would include benefit while a rejected applicant was appealing. Therefore we can take off at least half of that and we are down to £40 million a year. We should consider the fact that only 5 per cent. of in-country applications are made within the first three days. I acknowledge that the number of applications made in the first three days would increase if this amendment were carried but we are still talking about a small proportion of the total number of applications. It may emerge on proper investigation that the figure would be £10 million a year. I think that is probably a high figure. I say without fear even of the spin doctors in Conservative Central Office when they come to write their election manifestos that if it costs £10 million a year for us to be a civilised society and to prevent people in our country living in destitution when they have done no wrong and have committed no crime, that is a price worth paying. It is up to the Government to make sure that the cost is as low as possible. It is up to us as civilised people to make sure that there are not destitute people in our society.

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Moved, That Amendment No. 24BA, as an amendment to Commons Amendment No. 24B, be agreed to.--(Lord McIntosh of Haringey.)

3.45 p.m.

Baroness Williams of Crosby: My Lords, I support the amendment moved by the noble Lord, Lord McIntosh of Haringey. I make no apology to the House for returning to this subject. The Minister has pointed out that it is an issue which we have discussed on a number of occasions. However, as the noble Lord, Lord McIntosh, emphasised, the specific amendment we are now considering has not been considered frequently in this House. Indeed it has been considered on only one previous occasion and in a somewhat different form.

I therefore make no apology for returning to this subject even though I recognise that the House has spent a great deal of time on it. I can think of few Bills with which I have been associated--either in this House or another place--where there has been such a wide sense of concern and disquiet and a real effort made to try to modify its terms. The opposition to the Bill goes far beyond the traditional parties who undertake that role. The opposition--the attempt to alter the Bill--includes almost all the Churches, large numbers of non-governmental organisations, large numbers of people directly concerned with the welfare of refugees and large numbers of members of the party opposite in both Houses of Parliament. This is not simply a normal party argument. It has elicited, I believe much to the credit of this country, a large degree of anxiety and concern. All the argument has in effect boiled down to the one amendment that we are considering this afternoon. I shall make my remarks brief but I hope to the point, supplementing what has already been said by the noble Lord, Lord McIntosh.

First, those moving the amendment have attempted to meet the objections raised in another place by the Secretary of State for Social Security. The objections were, first, that there was no way of guaranteeing that we would know within three days that an asylum seeker had entered this country. We believe that we have met that argument by laying the burden of proof on the person seeking asylum. It will be up to him or her to show when he or she entered the country. If he is unable to do so, this amendment will not benefit him.

Secondly, it has been argued in another place that a further difficulty arose from the original amendment; namely, that those who made in-country applications would obtain a degree of additional protection which they would not receive if they applied at the port of entry. That has been dealt with precisely in the amendment. As the noble Lord, Lord McIntosh, said, we have had the powerful advice of learned counsel that the amendment meets that difficulty.

When objecting to the amendment in another place, the Secretary of State for Social Security made two substantial arguments: first, that to distinguish between what he described as illegal immigrants and those whom we attempt to protect in the amendment would be contrary to the Geneva Convention of 1951. This very

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morning we have had a fax directly from the United Nations High Commissioner for Refugees giving its opinion that there is no such conflict.

The second objection related to the difficulty of people arriving at an airport not making an application at the airport or port of entry because they did not understand the specific procedures of this country. The simple case is that asylum seekers from countries with a long history of torture and of fighting against the human rights of their citizens are the least likely to have any idea about the procedures of this country. How are they supposed to learn what those procedures are? How are they supposed to read Hansard of the House of Commons of 15th July, since in most cases they do not even speak our language?

A question was raised in another place by the honourable Member for Finchley (at col. 850 of the Official Report) in the debate of 15th July 1996. The Member for Finchley asked how people who arrive in this country in a state of fear and trauma understand that they have to claim asylum at the airport. In responding to that simple and direct question, the Secretary of State for Social Security referred only--I repeat "only"--to the difficulties that might arise if an airport or a port of entry had no interpreter able to interpret the language of the person seeking asylum. He did not address the issue raised by the honourable Member for Finchley.

I hope that we may receive an assurance from the Government that notices will be put up in airports in the main languages of people seeking asylum--those include the tribal language of Rwanda and Burundi--telling them that they must make application immediately if they wish to have their case considered. I have seen no such notice in Heathrow and I do not believe such notices are available generally. As regards the first problem--of how the genuine asylum seeker is to be able to satisfy the rules now laid down--I suggest that we have had no satisfactory reply.

The distinction frequently made by Ministers between those who apply in-country and those who apply at the port of entry has been dealt with in part by the noble Lord, Lord McIntosh. He pointed out that out of 775 successful asylum seekers in the first four months of this year, no fewer than 615 made their claims from inside this country. The reason is plain. Most asylum seekers not knowing our procedures turn to a Church, a voluntary organisation or other members of their community for advice. To do so is the simplest thing in the world. But how do they seek that advice until they are able to get hold of a telephone in this country or an address? On common sense grounds, it is unreasonable not to give some time for people to be able to approach those organisations which can help them. We on this side of the House have continually insisted that we are only too happy to help in any way we can where there is reason to believe that there are improper or fraudulent organisations operating in this field, as indeed there are. There are also many outstanding and decent bodies.

Let me give a couple of examples of the kind of people who apply within three days but not at the port of entry. The examples are drawn from a refugee legal centre--a thoroughly resectable body which has public

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finance to assist it. One is an Angolan youngster under the age of 18 who applied two days after arriving in this country for the straightforward reason that he did not know what to do. The adjudicator found that it was wholly reasonable for a young person to seek advice before making an application and upheld his case.

The second example was a badly tortured Iranian. He had had his legs broken in torture in Iran for the reprehensible crime of supporting democracy in that country. In prison he had his crutches taken away from him so that he had to crawl everywhere. Having finally reached this country, after advice he made an application within three days.

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