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Lord Judd: My Lords, I am sure that the House will be grateful to the noble Lord, Lord Avebury, for having raised the issue this evening. The noble Lord has a long, distinguished, and perhaps unrivalled career and history of commitment on these issues. He put the case with great clarity and gave the House a considerable amount of detail on the subject. It is, therefore, unnecessary for other speakers to repeat that ground. I should simply like to make a few brief points.
First, I should like to assure my noble friend the Minister that concern is not limited to noble Lords on the Benches opposite. There is concern on these Benches. We are aware of the more widespread anxiety among the people to whom the noble Lord, Lord Avebury, referred. I shall begin with one of the points that has been raised with me and one upon which it would be interesting to hear my friend's comments. The arrangements have already been put into practice before the time for challenging them has reached anything like a deadline. This is perceived as being unfortunate.
The second issue is one that has caused a good deal of consternation. In this very highly-charged area in terms of human well-being, emotions, psychological strain, and so on, it is important to have a very good relationship among the different people playing their part. I have in mind the legal profession, the advisers, the courts, the Government; and, indeed, the officials who have to carry out whatever may have been decided. Therefore, consultation and goodwill is crucial to achieving a civilised approach. Again, it would be helpful to hear from my noble friend why she believes there is so much feeling that there has not been anything like adequate consultation on what is obviously a very significant arrangement. I think that this is most unfortunate. I hope that my noble friend will find some way of reassuring us on this point tonight.
I have one further, simple point to make. When dealing with asylum, we are dealing with what is perhaps one of the most crucial issues in the whole realm of human rights. It is terribly important that justice not only be done, but that it should be seen to be done. However, to the best of our capabilities, we must also be confident about the decisions that are made. When this House debated the death penalty in the past, one of the issues quite properly raised was that of a mistake being made where capital punishment exists, with the impossibility of putting it right.
As someone who has for much of his life worked in realms not far from the issues under discussion this evening, I believe it is no exaggeration to say that, on occasion, we may be dealing with exactly such an issue. In that context, if there are any conceivable grounds whatever for challenging a decision—even at the 11th hour—and going over again what is involved in order to make absolutely certain that the rejection of a person's search for asylum is justified and right, it seems to me that that opportunity should be taken. It is, therefore, worrying that the new arrangements seem to some people to mean that irrevocable action may be taken before there has been a chance to exercise such a right. My noble friend's reassurance on those points would be most helpful.
I know that dealing with the whole business of asylum and the issue of migration is a very difficult task. I have a good deal of sympathy with my noble friend as regards the responsibilities involved. I am sure that my noble friend must be exasperated on occasion. It seems that everyone wants it both ways: they want clarity; they want firmness in everyone's interests; but when one tries to introduce clarity and firmness, people want more deliberation and discussion. Of course, there is a balance to be struck. However, on this particular issue, there is a real feeling that the balance has come down too far in terms of administrative convenience, or perhaps something a little more—dare I use the word in all friendliness?—sinister than administrative convenience. It is extremely important, therefore, that my noble friend the Minister should put our minds at ease on these issues. It may well be difficult to do so, but I believe that she should try to reassure the House.
The noble Lord, Lord Avebury, made one further important point—one that weighed heavily with me. If a matter is being handled judicially, surely it is the right of the person affected by the decision to feel confident that he is hearing from the judicial authorities as to why the decision has been made and what the possible implications may be. If there is to be an intervention by the executive, there will undoubtedly be anxieties and misgivings about what exactly is going on, and why. For all those reasons, I hope that my noble friend, who is a generous person, will agree that the noble Lord, Lord Avebury, was right to raise the issue, and that she will do her utmost to reassure people on these very deep and genuine anxieties.
The Countess of Mar: My Lords, I begin by declaring an interest in that I have been a member of
the Immigration Appeal Tribunal for 16 years and have, therefore, seen the changes that have occurred with the number of asylum seekers increasing hugely over recent years. Although I do not always agree with the noble Lord, Lord Avebury, he has made some very valid points tonight. I am grateful to him for enabling me to add my pennyworth. I can understand the frustration of Her Majesty's Government. I sometimes feel despondent when I have given careful, anxious and thorough scrutiny to a case, as I am required to do, while I know that it will go nowhere.However, there are one or two fundamental questions. Can the Minister kindly tell the House how many attempted removals have been thwarted by the disappearance of the appellant in the past year? If, as I suspect, the number is not known, can the noble Baroness say what efforts have been made to quantify the problem that this piece of legislation is intended to remedy?
We all know that there is plenty of anecdotal evidence that large numbers of failed asylum seekers remain in the United Kingdom without permission. We are aware that the number of voluntary and forced removals combined bears little resemblance to the number of appeal refusals. There is not much point in this little piece of legislation if it is not going to produce results.
It is the duty of the Immigration Appeal Tribunal to apply the law as it is. This statutory instrument deals with an administrative process after the decision has been made. I am sure that the Minister understands that it does not affect the decision making process and that, while the staff of the Lord Chancellor's Department may be involved, the judiciary is not.
I still have some concerns about the rules—some of which have been clearly expressed by the noble Lords, Lord Judd and Lord Avebury. We all know the adage that justice must not only be done; it must be seen to be done. The noble Lord, Lord Judd, expressed far more clearly than I can my unhappiness about the way in which the rules make arrangements for the determination of cases where appeals against refusals to recognise appellants as refugees have been dismissed or have been sent to the Secretary of State. That is not fair. No time limit is laid down between the date of receipt of the determination by the Secretary of State and the date before which it must be served upon the appellant. I understand that there is some kind of agreement between the Home Secretary and the noble and learned Lord the Lord Chancellor that, if a determination has not been served within two months, the Immigration Appeal Tribunal will serve it by post. I should be grateful if the noble Baroness would confirm that.
There are a number of "What if?" questions that need to be answered. What will happen if a determination rejecting an appeal is served by Home Office officials whose function is also to arrange for the removal of the appellant, where there is a possibility that the appellant may have the right to further recourse to the courts? Are removal directions to be served with the determination? Will the appellant
be taken into custody and given the opportunity to seek legal advice? Is the appellant's representative to be given the opportunity to be present when the notice is served? Is it the intention that the Home Office will employ additional staff to carry out this function? To put it mildly, the credibility rating of the Home Office in this field tends towards the low side, if not the very low side. If immigration officers are to do this job properly, they must be given the tools and the manpower.The noble Lord, Lord Judd, mentioned the lack of consultation. This has been a long-standing problem. Why is it suddenly being pushed in now? Has there been consultation, for example, with the Council on Tribunals? If there has, when did it take place and what was the process?
Finally, I make this plea. When a law is brought into force, copies of the legislation must be publicly available. This has not been the case with these rules—and, more seriously, nor was it the case in the early days of the recent anti-terrorism Act. The Home Secretary had to be asked to produce a proof copy to the deputy president of the Immigration Appeal Tribunal so that he could set up a bail hearing for someone who had been arrested under the terms of the Act. He was told that he must not divulge the contents of the proof copy to anyone. That is not satisfactory. There needs to be co-ordination between the Stationery Office and the department producing the legislation, so that when an Act or a regulation comes into force it is publicly available.
Lord Hylton: My Lords, your Lordships might have some slight sympathy with the Government in their desire to speed up deportations of asylum seekers whose cases have failed. I might possibly share that sympathy to some extent. However, I do not think that sympathy is what we are being called on to express in this debate. The Government have to listen seriously to the Immigration Law Practitioners' Association, which has pointed out that these rules were produced without consultation. It goes on to say that they are wrong in principle and unworkable in practice.
Some of us who have laboured through a whole series of immigration and asylum Bills have been saying for some time that what needs to be got right is the quality of the initial decision. Many components go into the quality of the initial decision. I shall mention only a few. One is the availability of interpreters for people who have no English or very limited English. An interpreter has to be the kind of person who can enter into the state of mind of an asylum seeker who may have travelled many hundreds of thousands of miles to get here.
Another important factor is the quality of the background information on the country of origin of the person in question. For example, what are, in practice, the risks of torture if that person is returned to where he started from?
A third, highly important factor is the availability of legal advice to the applicant. Applicants cannot be assumed to understand British law, let alone the
workings and practice of the British immigration and asylum process. The rules assume that the applicant may not have a legal adviser. Even if he is fortunate enough to have one, he may be removed so quickly that he will not have access to deal with the latest refusal.I agree entirely with the noble Lord, Lord Avebury, that the rules are likely to have a serious effect on those cases where emergency leave to remain is normally granted. Perhaps I may quote a comment by the London representative of the UN High Commissioner. He points out that it is essential to,
- "determine whether the applicant has benefited from 'fair and effective procedures for determining status and protection needs'".
I therefore join with and support the noble Lord, Lord Avebury, in urging the Government to consult fully and, in the case of this specific measure, to think again.
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