Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Falconer of Thoroton: The rules will specify the circumstances in which striking out occurs. It would be wrong for me to suggest that a rule should take a particular form, but I have set out the basic principles, and the rule-making body will no doubt take into account the noble Baroness's remarks.

Earl Russell: I have listened very carefully to the Minister. I think that I can recognise the voice of experience when I hear it.

We have here a case where there is serious right on both sides of the argument. There have been problems in the courts for quite a long time. Medieval courts had

19 Jul 1999 : Column 782

considerable problems in just this area. I wish to ask the Minister to consider whether their solution to the problem had something to commend it. They used often to produce an order to strike out on an interim basis and call on the party to appear and show cause why it should not be made final. That flushed it out surprisingly often.

Lord Falconer of Thoroton: In civil procedure in this country it is common to order that unless the parties by such-and-such a date do something their action will be struck out. It is a similar course. I am sure that the discretion given to the adjudicator in immigration appeal tribunals will embrace the possibility of such orders being made.

Baroness Williams of Crosby: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 106 to 108 not moved.]

Baroness Williams of Crosby moved Amendment No. 109:

Page 110, line 34, leave out paragraph 9.

The noble Baroness said: I believe that this amendment is of critical importance to the Bill. I wish to ask the Minister a number of questions. I am somewhat confused and concerned about the repercussions if Amendment No. 109 is not acceptable to the Government.

It is clearly set out in Clause 59 of the Bill that,

    "A person who is refused leave to enter the United Kingdom under the 1971 Act"--

that being a claim for asylum--

    "may appeal against the refusal"

on the grounds that his position is upheld by the European convention and that the refusal to allow him entry would be contrary to that convention. That is a good and clearly stated clause. It makes it plain that the person concerned may appeal on the ground of convention rights--very appropriate for a country which has recently agreed to incorporate the European convention into its own law.

However, paragraphs 9(1), (2), and so on, of Schedule 4 appear to take away a substantial part of that right. I trust that I misunderstand the wording of the Bill. It is curious that in effect paragraph 9 of Schedule 4 states that the Secretary of State may certify that the person's claim on the ground that it would be contrary to the convention is not upheld and that he may therefore be certified as open to removal or required to leave the United Kingdom.

I am concerned that the right to go to the immigration appeal tribunal will be withdrawn in the event of certification by the Secretary of State and the only remaining course open to the person who claims the convention right--it is a particularly sensitive claim--would be judicial review. I am not a lawyer. I understand that on those grounds it would not be possible to refuse the right of appeal to judicial review.

19 Jul 1999 : Column 783

We are concerned on two grounds. We would like to know the ground on which it will be based that a right under the convention is manifestly unfounded. That is a strong phrase. I take it to mean that there is no possible basis on which convention rights can be argued. The Government have made plain time and again their deep concern and desire to clarify, abbreviate and make more efficient the appeal process. We are concerned that set against Clause 59 of the Bill, paragraph 9 of Schedule 4 is likely to lead to a good many appeals for judicial review with all the delays that that entails. That view has not simply been invented on these Benches. We have taken a good deal of advice in discussions with people who are concerned as adjudicators with the immigration appeal process. They share our concern that the situation could lead to a multiplication of judicial review appeals because that would be the only ground open.

That is not an insignificant matter, even at this late hour, and I should like to press the Minister on those two issues. First, on what grounds does he believe that the Secretary of State could declare a convention claim to be manifestly unfounded without leaving open the possibility of a subsequent appeal to the European Court of Human Rights? Secondly, why is the path to the Immigration Appeal Tribunal to be blocked under paragraph 9 of Schedule 4 in a way that makes an increase in the number of judicial review cases likely? I may have misunderstood the wording of the Bill and the process of exception may be narrower than I had supposed. I beg to move.

The Deputy Chairman of Committees (Baroness Cox): If Amendment No. 109 is agreed to, I cannot call Amendment No. 110 because of pre-emption.

Lord Clinton-Davis: I rise partly to support the noble Baroness, Lady Williams of Crosby, because I, too, was approached on the issue by those who practise in immigration law. They were concerned about some of the issues. I put my name to the amendment because I thought that it was appropriate that my noble and learned friend the Minister should clarify them. The apprehensions that have been expressed may have little or no merit, but when those who practice in the area raise concerns they should be seriously addressed. That is why I have supported the noble Baroness in giving an airing to the issue.

Earl Russell: I do not know whether the Minister has read the report by the Refugee Legal Centre on the appeal hearings of the Roma who recently landed at Dover. A number of their claims were initially said to be manifestly unfounded. It emerged slowly during the appeal hearings that that statement was itself manifestly unfounded. The belief that something is manifestly unfounded may arise from a series of almost unthinking assumptions that may turn out not to be proof against evidence. One should always think twice before declaring something to be manifestly unfounded, particularly if there is a risk of a refugee--possibly a genuine one--being sent back to their country of origin in which they have a genuine fear of persecution.

19 Jul 1999 : Column 784

The first principle of refugee law is that the danger of being sent back to the place of persecution must be avoided. I am not certain that that can be done under the proposed procedure.

Paragraph 9(4)(b) says that the provisions apply if,

    "the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist".

The countries of the West occasionally show great confidence in believing that circumstances in formerly dictatorial countries have changed with greater rapidity than can be expected in any culture.

I have had correspondence from people in Nigeria, some of whom my noble friend Lord Avebury has also corresponded with. It was suggested to them that the situation in Nigeria had changed and their fear of persecution was manifestly unfounded. That may be so at the highest level, but the Minister knows as well as anyone that not every claim reaches the highest level. Those with whom I have had correspondence said that all the people who had tortured them remained in their local offices. When they thought of returning under the authority of those people they certainly were afraid of persecution, regardless of whether that fear was well founded. I would not have had the confidence to tell them that they were wrong.

11 p.m.

The Countess of Mar: I support the amendment. In many cases, I am unhappy about the previous evidence which has been given against the appellant as regards the state of the country from which he has come. Much of it is out of date or is conjecture, particularly on the part of the Home Office. When we are presented with up-to-date evidence, it is clear that the appellant has both a subjective and an objective fear of persecution in his country.

Furthermore, I am wary about condemning someone who has failed to produce a valid passport or has produced an invalid one and has not told the immigration officer. Such people leave their countries in fear and often cannot go through the normal procedures of obtaining proper passports and visas. In genuine cases--and many are genuine--we should be most cautious not to stamp on them too hard.

Lord Avebury: I was interested to hear what the noble Countess said about the nature of the evidence presented in some of the cases that came before her. I know that the Home Office is steadily improving its country assessments, but it has some way to go before we can be certain that it is up to date and that it truly reflects the state of affairs in each of the countries concerned.

The Minister may be aware that on occasions the IND has had to withdraw country assessments because they have been subjected to such a barrage of valid criticism on various grounds and have been shown to be manifestly unfounded.

The country assessments are used on the basis of the evidence which the Home Office gives in many of the cases which appear before the adjudicators. They must be fully reliable and accepted as such by practitioners

19 Jul 1999 : Column 785

such as the Medical Foundation and Amnesty International. All those sources are available and the Home Office is beginning to quote them: I commend it for giving references to the statements it makes in the country assessment.

However, the fault with the country assessments is the omissions rather than the content. The Home Office does not often make inaccurate statements about what happens in the countries concerned, but, I am sorry to say, it misses out material facts of importance in considering whether a particular asylum applicant has a genuine fear of persecution. Therefore, when we see that claims have been struck out because they are manifestly ill-founded, I have a moment's thought about the effect on the IND as regards representations made before the adjudicators. Until we are fully satisfied that the system is properly effective and fully takes into consideration the state of affairs on all the countries, of which there are many, we cannot be satisfied with this clause as it stands.

Next Section Back to Table of Contents Lords Hansard Home Page