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The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I am grateful to the noble Lord, Lord Avebury, for giving us this opportunity to discuss the important points that he has raised. I was not surprised to see that
my noble friend Lord Judd has been joined in the debate by the noble Lord, Lord Hylton, the noble Earl, Lord Sandwich, the noble Countess, Lady Mar, and the noble Lord, Lord Brooke of Sutton Mandeville. I think that we are all old friends and have been on this journey many times. I should like particularly to thank the noble Lord, Lord Dholakia, for his kind comments, and for the sting that he always brings with them. I am grateful also to the noble Lord, Lord Dixon-Smith, for his questions and implicit support.The moral, legal and practical anxieties that have been ventilated in this debate are very well understood by the Government. A balance has to be struck between improving the lot of those who should and must benefit from the asylum that our country rightly gives, and those who seek to abuse the system and take adventitious and improper advantage of the benefits that asylum brings. I think that no noble Lord has failed to emphasise that point, and rightly so. But, as noble Lords know, being just means that when it is right to do so we must be able to say no. I know that for many of us—I do not exclude myself from this group—that is a word we find difficult to say. I do not suggest that we should say it precipitately or ill advisedly. However, we have to separate and protect the sheep from the wolves. The mechanism which the rules provide may assist us to do that.
Many noble Lords, not least my noble friend Lord Judd and the noble Earl, Lord Sandwich, asked what happens if a tribunal or an adjudicator gets it wrong and there are further or other issues which should properly be taken into account. I reassure the House that we have the comfort of the availability of proper, robust legal advice and an avenue through judicial review, if the grounds are there to support it, at the disposal of the failed asylum seeker through which such decisions can be reviewed. I reassure noble Lords that there will be no worrying irrevocable step to be taken in that regard. I hope that my noble friend Lord Judd will particularly welcome that statement.
We believe that we have achieved the correct balance. The policy forms part of our wider reforms to the asylum system. Our aim is a fair and efficient system to integrate genuine refugees into society swiftly and to remove without delay those who fail to gain asylum. Everyone will continue to have a fair opportunity to put forward his or her claim, however weak or strong it may be. The measure contributes towards the developing strategy for maintaining contact with asylum seekers by means of initial briefing and reporting at accommodation centres, reporting centres or police stations as part of the asylum support arrangements. All those measures together will help to ensure that asylum seekers fully engage in the consideration of their claim.
A number of noble Lords asked about implementation. The noble Lord, Lord Avebury, suggested that the rules were "sneaked in" over the Christmas Recess. I believe that that comment was echoed by the noble Lord, Lord Hylton, the noble Earl, Lord Sandwich, the noble Lord, Lord Brooke, and, indeed, the noble Lord, Lord Dholakia. I believe
that it was also echoed by the noble Lord, Lord Dixon-Smith. I by no means wish to leave him out of that illustrious company. I reassure the noble Lord that the rules were introduced under the ordinary parliamentary procedure for this kind of statutory instrument. They were published by the Stationery Office shortly before they were due to come into force. At the same time they were made available on the Internet. A press release was issued as soon as they came into force and before that, before Christmas, the next day after they were laid before Parliament, copies were sent to organisations with an interest in immigration issues. No decisions could be sent to the Home Office for delivery until the rules came into force. I reassure noble Lords that in reality no one could possibly have been affected by the new rules until all those with a recognised interest in these issues had had time to assess them.We had a consultation process. There was consultation with the Council on Tribunals. A draft of the rules was sent to it on 28th November. It was asked to comment by the end of the week and it did so by letter received on 30th November. We replied. There was also consultation with the chief adjudicator and the president of the Immigration Appeal Tribunal.
The implementation of the new method of delivering appeal decisions in person will happen gradually. Initially, only a small number of decisions will be served personally on asylum seekers, limited to four geographical locations. I reassure noble Lords that there will be a full evaluation of the policy in March to ensure that the scheme is working fairly in every case. I reassure the noble Countess, Lady Mar, that we agree that to be successful that process must be effective.
The Government understand the concerns that legal proceedings must be fair, and must be seen to be fair. That refrain echoed around the House. The courts, including the European Court of Human Rights, rightly attach importance to the perspective of the person who loses. But that person's perspective is not the only one to accommodate. Fairness is an objective concept, not a subjective one.
If the Government permit a judgment to be evaded or frustrated by another individual, or by the state, that would constitute a violation of the successful party's fundamental right to a judgment that was effective and not nugatory. Inherent in the law of human rights is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. Those are not my words but the words of the European Court of Human Rights.
I believe that the noble Lord, Lord Avebury, among many others, rightly asked me to confirm how the procedure is intended to operate. That point was echoed by a number of noble Lords. The effect of the new rules is that where, and only where, no further appeal lies from the decision of an adjudicator to dismiss an appeal under rule 15, or from a decision of the Immigration Appeal Tribunal to refuse leave to
appeal under rule 18, the notice of that decision will be delivered by the Home Office. Delivery may be by post or in person. In either case delivery will be prompt. Decisions to be posted are dispatched within two days. Decisions to be delivered in person will be delivered within two weeks whenever possible. Legal representatives will be notified within 24 hours of a decision being served. It is intended if possible that they will be sent notification by fax as opposed to by post. I hope that that deals with the question of the noble Earl, Lord Sandwich.The changes make no difference whatsoever to the conduct of cases before the adjudicator or the Immigration Appeal Tribunal. I am happy to be able to confirm that as I know that it is something the noble Countess, Lady Mar, was rightly anxious to underline. An asylum seeker will have exactly the same opportunities as now to present his or her case.
I was also asked about the Immigration Appellate Authority, whether decisions will be served after two months and what will happen if the Home Office fails to do so. The Home Office must tell the appellate authority when and how it has delivered the decisions. The rules require that. The appellate authority will chase the Home Office. We know how efficient the appellate authority can be in that regard. If it does not receive notification within six weeks that the decision has been delivered, it will be able to follow that up. The appellate authority will keep chasing the Home Office until the decision is delivered, but it will not send it out itself.
The changes make no difference to the availability of review by the chief adjudicator under rule 16 or by the Immigration Appeal Tribunal under rule 19. The changes make no difference to the availability of judicial review. If an unsuccessful asylum seeker is applying for judicial review to the High Court, the Home Office will not remove that person from the United Kingdom for at least three days to allow the application to be made. The Administrative Court Office will accept the application by fax. If an application for judicial review is made, the Home Office will not remove the applicant from the United Kingdom until that application is determined. We have an assurance.
If the unsuccessful asylum seeker is detained, he or she is given an effective opportunity to take legal advice. Telephone calls may be paid for and details of the Immigration Advisory Service and of the Refugee Legal Centre are displayed in a number of languages in all removal centres. All of that will continue to be the case.
The new rules give the Home Office no unfair advantage. They deprive no one of the opportunity to apply for a chief adjudicator's or appeal tribunal review. They deprive no one of the opportunity to apply for a judicial review. They deprive no one of the opportunity to take legal advice. The only opportunity of which anyone is deprived by the new rules is the opportunity to evade or frustrate the carrying into effect of the judicial decision in their case. And no one has a fundamental right to frustrate justice.
I thank noble Lords for the way in which they have expressed their understanding of the need to distinguish between the valid asylum seeker and those who seek to abuse the system. That is an important distinction that we must all rightfully bear in mind.
The Government accept—I reassure the noble Lord, Lord Dholakia, on this point—the current legal position. As the noble Lord knows, that position is that immigration cases do not engage Article 6 of the European Convention on Human Rights; that is, the right to a fair trial. That has been the judgment of English and Scottish courts, and of the European Court of Human Rights. But the Government willingly accept that those seeking asylum are as much entitled as any other litigant to the standards of fairness that the common law requires.
In other legal proceedings, it has for many years been the case that where a court order might be frustrated by its recipient, the applicant can apply for the order, and then can enforce it, without giving the recipient advance notice. No one has yet successfully alleged that that procedure compromises the independence or impartiality of the court, or violates anyone's fundamental rights, even where the order is in favour of the government. It is true that in each of the cases where that has been found, the recipient has the chance to have the order reviewed by a court under some procedure or another. But what we are doing here is exactly the same in this regard. It is true of instances where there is an exception and it is true in this case, too.
Under these new rules, the unsuccessful asylum seeker will not receive a mere statement of the failure of his or her appeal. Just as now, the decision delivered will be the reasoned judgment of the adjudicator or of the Immigration Appeal Tribunal. That is itself an essential ingredient of fairness, because only if adequate reasons for a judgment are disclosed can the parties—and the public—understand why it was given. Only if adequate reasons for a judgment are disclosed can the unsuccessful party formulate a reasoned challenge if he or she wishes. Those fundamental rights are wholly untouched by the new rules.
I well understand the visceral reaction that to allow one party to a dispute to know the outcome before the other must be unfair. However, I reassure noble Lords that there is here no such disadvantage or unfairness. In a case involving a Belgian court fully 30 years ago, the European Court of Human Rights commented on the perceived unfairness in a case. It said:
- "If one refers to the dictum 'justice must not only be done; it must also be seen to be done', these considerations may allow doubts to arise about the satisfactory nature of the system in dispute. They do not, however, amount to proof of a violation of the right to a fair hearing. Looking behind appearances, the Court does not find the realities of the situation to be in any way in conflict with this right".
I think and hope that when noble Lords have an opportunity to consider how the rules will operate, they will adopt the same position as the Court of Human Rights did in that case. I hope that they will be able to say, "In truth, there is no disadvantage, no
matter what the perception may originally have been". We argue—and argue strongly—that the rules do not subvert justice; but in fact, if properly looked at, they may very well sustain it.
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