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The Earl of Sandwich: My Lords, to begin on a more positive note, I think we are all relieved that the Home Office is reducing the backlog of asylum applications and is getting nearer to a coherent policy. Some of the bad law has been cleared away and we are all looking forward to the White Paper next month.
However, the events of 11th September have not given any greater security to genuine asylum seekers—rather the reverse. There are many people who suspect that the Government are clamping down on asylum seekers or are about to. Here we have amendments to the asylum rules which have caused a great deal of concern among the agencies which know about refugees. We all want illegal immigrants to be removed, but not without the proper safeguards that we would give to our citizens.
The accelerated procedures were reviewed and criticised by the European Union Committee of this House in March. The committee said that they were no substitute for good decisions. It even doubted whether they had any place in the EU directive. The Select Committee on delegated legislation is to examine the matter tomorrow afternoon.
The only challenge to certification is judicial review, which may now be undermined. While it is important for manifestly unfounded cases to be identified speedily and for people to be removed before they are able to abscond, it is equally imperative that asylum seekers have the benefit of legal advice throughout the legal process.
Until now, the Immigration Appellate Authority has informed both parties of the decision to an appeal. But under the amended rules, the IAA's decision goes principally to the Secretary of State and may only reach the appellant some time later. Thus the Home Office may be able to take steps to remove the asylum seeker even before he or she has heard the decision. Surely any such action would be contrary to undertakings given by the Home Office in the recent
cases of Pardeepan and Kumarakuruparan. At what stage under the new rules would the Home Office inform the asylum seeker's legal representative? Do the rules also apply to those who are not at risk of absconding?Finally, if an asylum seeker reasonably decides to take legal advice following a negative decision, can the Home Office improve on its present timetable of reporting both initial decisions and appeals? I can see what the Government are worried about. There are too many unfounded cases, and applicants may disappear. But at present the process can take months. It is surely unfair to spring a decision on a family and proceed immediately to removal before any time has elapsed. I know that that is not the intention, but it may be the result.
Some have asked for a personal guarantee from the Secretary of State that no one will be removed within an agreed period after the determination, but it would be far better if the Home Office could rethink the implementation, workability and natural justice of the amended rules.
8 p.m.
Lord Brooke of Sutton Mandeville: My Lords, I have great respect for the immigration Minister, the noble Lord, Lord Rooker, on the Front Bench and for the noble Baroness, Lady Scotland, who I believe is going to respond to the debate.
I had a great many more cases in the last Parliament than I had ever had before—perhaps because of the silence of the Home Office in responding to many of them. I pay tribute to the Minister for the manner in which cases are being cleared up. I am grateful to him for the way in which he has responded to a lot of cases that I have raised with him in this Parliament that dated back to the previous Parliament.
I shall dwell for a moment on the circumstances of the case to which the noble Lord, Lord Avebury, referred. I remember a deportation case involving a Lebanese several years ago that came to me just before Christmas. Cynics might say that the timing of the deportation case had some of the characteristics that the noble Lord, Lord Avebury, referred to with regard to the timing of the order. There were certainly those who thought that that might be so. It was a complicated case that totally took over my time and that of my secretary in the run-up to Christmas, which is a busy period, but we got in a massive submission to the Minister's office. One of the minor rewards was that the private secretary in the Minister's office with whom we were directly liaising spoke warmly about the amount of work that had gone into it and the quality of the manner in which it was set out.
The decision was upheld, but the individual then disappeared immediately after Christmas when they were supposed to be at Heathrow. That is incredibly frustrating for everybody concerned. I freely acknowledge that it is frustrating for the Government as well. It was frustrating in a modest way for me and for my secretary, but our time had been freely given, so we had to write it off to experience. I certainly would
not want to weigh that frustration against the rights of those who come to parliamentarians—I choose that word deliberately to embrace both Houses—with their cases.It is tragic that those who disappear—who presumably underlie the order—potentially queer the pitch for so many others by the atmosphere that they create. I understand the Government's frustration. I might even be prepared to give the Government the benefit of the doubt in the circumstances, but, just as it is helpful when making umpiring decisions in cricket to be able to see a replay of what occurred, I think that on this occasion, not least because of the eloquence with which the noble Lord, Lord Avebury, spoke, the Government owe the House a full and clear picture of why the provisions were brought in, and in particular why they were introduced in such a manner.
Lord Dholakia: My Lords, I am delighted that the noble Baroness, Lady Scotland, will be responding to the debate. She has an excellent record on human rights issues and I hope that she will see the reasonableness of our case. She need not worry about the Minister from the Home Office who is sitting next to her. His often tough pronouncements on immigration and asylum issues are probably meant much more for the press. His personal actions on cases that are referred to him often display many humanitarian considerations.
I also thank the noble Countess, Lady Mar, for her contribution. She has first-hand experience on immigration appeals and her concerns must be taken very seriously.
I am delighted to support my noble friend Lord Avebury in proposing that the rules laid before the House on 17th December be annulled. A number of noble Lords have already pointed out some serious issues of concern. We are told that the change is necessary to deal with potential absconders. No one underestimates the Home Office's concern about applicants who may vanish once they know that their appeal has been unsuccessful. However, the Home Secretary has a quasi-judicial function and he cannot and should not be allowed to act as judge and jury in a matter where legal process has not been exhausted. In his rush to reach the target set for deporting applicants, the removal directions have been set at the same time as the notification. In reality, that prevents applicants exercising their legal rights by nullifying any further legitimate application by the appellant on other grounds, such as whether any provisions of the Human Rights Act have been breached or whether there is a change in circumstances in either the appellant or the country to which the appellant would be removed that might prevent the enforcement of removal directions.
Let me make it clear that we have no dispute with deportation orders taking place if all legal procedures have been followed. That is what Parliament intended. However, any procedure short of that takes away the independence of the judiciary and places the matter
squarely in the hands of the Secretary of State. That is not what Parliament intended. My noble friend's Prayer is designed to prevent that.Other matters of serious concern have been highlighted during the debate. The rules were laid before Parliament just before the Christmas Recess, on 17th December, and came into force on 7th January. During that time your Lordships' House sat for only five days. The rest of that time was the Christmas Recess. That did not give enough time for consultation. Almost all immigration and asylum organisations have complained about that haste.
Last week, I asked the noble Lord, Lord Rooker, whether there were any legal means by which an applicant could enter the United Kingdom and make an application for asylum. The Minister was bold enough to say "No". Of course, we all know that that is the state of play today. We have created conditions that make our signature to the 1951 UN convention on refugees a charade. If a person cannot enter the country or is prevented from doing so, what good is a convention, which is designed to protect those who are victims of persecution?
I well understand the Minister's anxiety about those who are economic migrants, who do not qualify under the 1951 convention, but the Government make the laws and they have no right to circumvent an individual's access to law if that is provided for in statute.
Consider the cases of asylum applicants from Zimbabwe. Was it not the pressure from Parliament and my noble friend that made the Home Office rethink its policy of deportation? Surely even after the certification that a claim is without foundation, the situation may change rapidly and therefore such certification does not mean that a claim is without basis. It is a fallacy that all certified claims are "manifestly unfounded". There is a risk that people will be returned home to face persecution. We need to abide by the safeguards that the law already provides.
If my noble friend Lord Avebury had not protested so loudly, and had the Government not changed their stance, the only way of challenging refusal in such cases—and in cases in which there is no certification in force and the tribunal has refused leave to appeal—would be to apply for a judicial review in the High Court.
Before this order, decisions were sent to the appellant and his representative as well as to the Home Office as soon as they had been made. Now there is to be a fundamental change. The outcome of such appeals will be sent only to the Home Office. It will be up to the Home Office to inform the appellant of the outcome at a time and place of its choosing.
The reason offered by the Government is that the new measures will contribute towards improved enforcement of asylum appeal decisions, while upholding the independence of the Immigration Appellate Authority. That is utter nonsense. The crux of the matter is that it is to enable the Home Office to
deliver negative appeal decisions if the appellant has exhausted all rights of future appeal. Does that include a judicial review at the end of the appeal process?Many of us were disturbed by a recent documentary about the immigration snatch squad. I was horrified that the Home Office was prepared to expose the identity of individuals in full view of television cameras. We would not allow such treatment in respect of those against whom a criminal conviction was pending. In this case, however, we are talking about asylum seekers who have committed no crime at all. The snatch squads would use their powers to deport and thus deny access to further legal process even if that were requested, and the applicant or his legal representatives would have no time to digest the decision on which the snatch squads acted.
Although the accountability of snatch squads is a serious concern, it is a separate issue that we shall take up in due course. In this debate, there are other concerns on which we need ministerial clarification.
Some asylum seekers are unable to appeal to the IAT, and many of them are not regarded as possible absconders. They, too, will find that their decisions have been sent to the Home Office. Will the Minister explain why the rules cover those who are not deemed to be at risk of absconding? Can she explain whether any precedent places a requirement on the IAA to inform one side but not the other of the result of the procedure? It is like a judge or a magistrate informing the police of a decision without the defendant being aware of it. The first time an appellant discovers the outcome of his case would probably be on the way to the airport, too late for any further legal process. Is that consistent with the protection of Article 6 of the ECHR? Will the Minister confirm that the rules do not breach that provision?
Will the Minister explain how and at what stage unrepresented failed appellants will be allowed to contact a legal adviser? What criteria will be used to determine which failed appellants are likely to abscond? Do the Government have any plans to establish a complaints machinery similar to the Police Complaints Authority so that there is proper accountability of the snatch squads' work? I ask your Lordships to cast back your minds to the case of Joy Gardner which resulted in street riots in Tottenham. Surely, there is a real danger that such a situation may arise if decisions are taken but appellants are not even sure why the Home Office has ordered their removal.
My noble friend Lord Avebury, with his vast experience in human rights, has rightly challenged the Government on the rules. I look forward to the Minister's explanation with great interest.
8.15 p.m.
Lord Dixon-Smith: My Lords, I cannot but feel that everyone involved in this debate, whether they are advocating the solution advanced by the Government or the case in favour of asylum seekers, is in the same position: we are all between a rock and a hard place. The fact is that this country's record on asylum seekers has been, and remains, remarkably good. Of course,
within that good record there are occasional tragic errors. It is absolutely right that everyone should be properly concerned about those errors and seek every means by which they can be eliminated.It is, however, also the fact that the number of asylum seekers has increased dramatically in recent times. It is also the fact that the number of those who have gone through the due process and failed to have asylum granted is not matched by the number of those leaving the country. That is a very difficult dilemma to deal with. Tragically, those who escape the system prejudice the whole system for those who have a legitimate case and ought to remain. I think that the empirical evidence would suggest that there are far too many people in that category and that they sadly outweigh the failures of the system, if failures there be. That is the reality that we are dealing with.
I do not think that anyone takes any pleasure from the situation in relation to Zimbabwe. The Government were rather slow in acting on a case in which it was quite obvious that we were dealing with a government who had gone seriously astray and in which the rule of law as we understand it in European terms had completely broken down.
There was movement in that direction, but there has also been movement in another direction. Although I would be the first to acknowledge that there are still severe questions about the state of affairs in Afghanistan, there is marked improvement there. How is it possible to make the judgment in respect of asylum applicants from Afghanistan who have come here in tragic circumstances, as the result of a regime that no longer exists? I agree that there are question marks over the stability of the new regime there. But are we to say, as we very easily could, that we have no confidence in so much work that is being done by so many people from this country—I pay tribute to the Prime Minister for his part in this—and from America and the United Nations? They have tried to rectify a tragic situation. If we are saying that, should we acknowledge it?
The fact is that hard cases make bad law, and we have seen many hard cases. However, the generality of the law has been good. I echo particularly those who ask the Government whether the appeals mechanisms are satisfactory. The purpose of serving appeals notices in person on an applicant is to prevent his disappearance. If that meant that someone was to be immediately whistled off and put on an aeroplane when he had further legal recourse that he ought to have used, it would be wrong.
So the credible question is on the detail of how the new rules will work. That is the appropriate question to ask the Government at this stage. As only the Government can answer it, having asked it I shall sit down.
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