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Lord Filkin: I recognise that these are important questions the Committee is probing. Perhaps I may set
the context. The Committee is aware that in a significant number of cases people apply for asylum and refuge in this country—for example, the significant number of people who came from Kosovo in 1999—who are not found to qualify for asylum but it is held that they have a right to exceptional leave to stay for a period of time because, for example, the situation in their own country does not make it possible to return them at that point in time. That is a necessary and important use of ELR to give them a temporary stay of occupation until such time as return is possible.Clearly the Government's position—and, I believe, that of the previous government—is that when people are able to return to their countries, not having been awarded asylum status, it is right, proper and necessary for them to return—as, indeed, more than 3,300 Kosovans have returned subsequently to Yugoslavia from the United Kingdom.
The point has been rightly made that there is a difference between asylum status and ELR in terms of the benefits that go with that status. It is therefore fair and reasonable that a person whose asylum claim has been rejected should have the opportunity to challenge that rejection at an appropriate point in time. Through this clause, the Government are essentially saying to people who are in the situation where we do not believe that they have a valid claim for asylum but are granted ELR for a period of time—we believe 12 months or more is reasonable for reasons I shall touch on—that there should be a stay on them exercising their appeal for that period of time.
If at the end of the 12 months plus they have not, for whatever reason, gone back to their country, we will make a fresh decision on their case. If that fresh decision is again to deny asylum, at that point in time they will be able to exercise a right of appeal. I put on the record that, as a matter of policy, the Government would not engage in repeat offers of one year. Clearly that device would frustrate a person's right, which he should have, to apply, through appeal, to challenge a decision not to grant him asylum.
The Committee may ask why we are doing this? I hope for reasons that noble Lords will understand. Again let me take as an example the number of Kosovans. If a substantial number of people were able to return, it would clog up the appeal system before it was necessary to test their appeals. If at the end of their year we decide that they should go back—that they should not have the right of asylum—they will then have the right of appeal, which they can exercise through the due processes of which the Committee is aware.
Essentially it gives them a period of stability, the opportunity to move back if appropriate and the right to exercise their appeal at a point in time when the Government have made a new decision that they are still not to be granted the right of asylum because they do not qualify for it. In short, in imposing the one-year time limit, it is not our policy to use it to deny the right to challenge the refusal of asylum by granting successive periods; it is simply to manage the process more intelligently.
We prefer a period of 12 months rather than six months because it seems to us that six months is too short a period. One should give some settlement to people and time to allow the country where they came from to get over the difficulties which have made return inadvisable or impossible. For those reasons, I urge the noble Lord to withdraw the amendment.
Lord Thomas of Gresford: It appears that there is a proper rationale for postponing the decision for 12 months. We are pleased to receive the assurance that the period of 12 months will not be rolled over and continued. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 194P to 195ZA not moved.]
Clause 72 [Grounds of appeal.]
Lord Bassam of Brighton moved Amendment No. 195A:
- Page 41, line 3, at end insert "or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) as being incompatible with the appellant's Convention rights."
The noble Lord said: For the convenience of the Committee, and so as not to take up time unnecessarily, I have suggested that we group these amendments to Part 5. They are either minor or technical. They are designed to clarify how matters work or to resolve some inconsistencies.
I shall be more than happy to respond to any inquiries that Members of the Committee may wish to raise when we come to each amendment; but, otherwise, I propose simply to move each of them formally when we reach them on the Marshalled List. I beg to move.
Earl Russell: I do have a few points to make about these amendments. I am afraid that some may take a little time, but they are of serious substance and may save time when we come to Clause 82.
I turn first to Amendment No. 195A, which allows for Article 6 of the European convention. I welcome that warmly as far as it goes. My query is: why does it not include Article 3, which is quite a common reason for not returning people to a particular country of origin. There is presumably a reason for excluding it.
I am concerned also about Amendment No. 196A, which confines adjudicators to considering,
- "the circumstances appertaining at the time of the decision to refuse".
The late recollection of torture—indeed, the extreme difficulty in recollecting it at all—is notorious. It is not confined to torture. I remember, in 1948, an Australian all-rounder—the sort of person who scraped into the Test team when he was lucky—scoring 207 in a Test match. He was knocked out by
his first ball. It later transpired that, from then until his dying day, he never remembered a single ball of his great innings. I feel very sorry for that man.The effect of head injuries on memory among torture victims is a very common circumstance in asylum appeals and tends to cause a good deal of trouble. Let us take, for example, the case of an African survivor of torture who had suffered multiple head injuries and who now suffers from chronic pain, insomnia, memory loss and depression. He did not disclose the fact of his torture at the time of his appeal. It came out quite a long time later, after the Medical Foundation for the Care of Victims of Torture had managed to talk to him. He was granted refugee status the day before his hearing before the adjudicator. So, of course, that case is not included in the Home Office statistics relating to successful appeals—which is a point to remember.
It is not only a question of head injuries. Sleep deprivation is a very common form of torture. The Medical Foundation for the Care of Victims of Torture finds that a year after the torture has taken place, 75 per cent of victims are sleeping four hours a night or less. We all know, and particularly in this House at this time of night, that going without sleep tends to affect the memory. So this kind of case may not come out immediately. I could go on multiplying cases of this sort, as I am sure the Minister knows perfectly well.
If it is not possible for a later adjudicator to consider evidence of torture which did not come out at the initial hearing, that will do a material and a grave injustice. I hope that the Minister can assure me, first, that it was not the intention of his amendment—I am sure that it was not. Secondly, I hope that he can assure me that it is not the effect of his amendment. Thirdly, I hope that he can assure me that, if inadvertently it is the effect of the amendment, it will be rectified.
11.30 p.m.
Lord Bassam of Brighton: The noble Earl asked first why Amendment No. 195A does not refer to Article 3. It does so refer. The amendment refers to acts unlawful under Section 6 of the Human Rights Act 1998, and that includes all convention rights under that Act including Article 3. I think that that is a substantial reassurance for the noble Earl; it certainly ought to be. He asked whether Article 3 is covered, and the answer is that, yes, it is.
I turn to the issue of whether torture will always be considered. It will be considered regardless of whether the evidence is raised before, during or after appeal. At all stages, evidence of torture—which is obviously material in all these cases—has to be very carefully considered. I hope that that reassurance will satisfy the noble Earl.
Lord Archer of Sandwell: I hope that my noble friend will forgive me; I apologise for interrupting. However, does he appreciate that the noble Earl's point is not that there is no power to consider torture if it is disclosed late; it is that that is sometimes taken as a
reason for disbelieving the allegations of torture? What is being said is that the research mentioned by the foundation shows all kinds of reasons why people disclose torture only at a late stage, and that that does not necessarily show that the allegations are untrue.
Lord Bassam of Brighton: I accept what my noble and learned friend says. That is why I repeat that, as far as we are concerned, evidence of torture will be considered whenever it is raised. It is obviously highly relevant. We also recognise and fully accept that the research is clearly important and has a bearing on these issues.
The Countess of Mar: If I may, I should like to have this clear. Is it right that we are not necessarily talking about asylum claims in this clause, but about applications for leave to enter for other reasons—as students, for example, or for other purposes such as marriage?
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