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Lord Thomas of Gresford: We on these Benches support the amendment moved so well by the noble and learned Lord, Lord Archer. I have nothing to add to what has been said, particularly by my noble friend Lord Russell. We on these Benches are behind the amendment.

12.45 a.m.

Lord Falconer of Thoroton: On behalf of the Government, I welcome the opportunity to give an explanation and a defence of this significant and important clause.

For the sake of clarity, I should say what the substantive effect of the clause is. It has two parts. Where a case is clearly unfounded, the effect of making an appeal will not be to suspend the removal of the applicant to his country of origin, from where he must make the appeal. In any other case, the clause allows a person whose claim has been refused to be sent to a third country, so long as his ECHR rights will not breached in that country. So there are two alternatives—first, a claim is clearly unfounded, in which case the appeal is non-suspensive and the person must go before making the appeal; alternatively, he can be sent to a safe third country; namely, one where his ECHR rights will not be infringed. If that is the position, he may make his appeal only from that safe third country.

A preliminary question was asked by the noble and learned Lord, Lord Archer of Sandwell: why was this provision added to the Bill effectively at a late stage after a Bill with a complete scheme had been put together? The provision seeks to deal with the problem that large numbers of migrants seek to remain here on the basis of asylum and human rights claims that are clearly unfounded.

It was thought after the first parts of the Bill had been drafted—that is, those without this clause—that they did not deal adequately with that particular issue. That is why this clause was added. We are dealing here with the problem of people who have a clearly unfounded claim. In very many areas where people make a claim and it is found to be clearly unfounded, the person adjudicating on the claim must decide

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whether or not the fact that the applicant wants to take it to another level should lead to his or her position being preserved pending the matter being put—

Earl Russell: Will the noble and learned Lord explain to me how a claim can be known to be clearly unfounded before it has been heard?

Lord Falconer of Thoroton: The Secretary of State, before deciding upon the claim and whether it is clearly unfounded, must obviously evaluate what is said by the applicant. In his excursion through the law, which was profound and helpful, the noble Earl was dealing in very many cases where rights are taken away from people on the basis of allegations made against them. What we are dealing with here are applications made by asylum seekers in effect when they advance a case, saying, "Give me a particular right or concession on the basis of my case being advanced".

What happens in a Clause 82 situation is that the Secretary of State, after hearing both sides of the argument as to whether the claim should be granted, must then conclude whether to grant it or not. As the noble Earl pointed out, that does not necessarily mean an oral hearing.

So this is stage one of the process. On the hypothesis with which Clause 82 is dealing, the Secretary of State says, "I do not think that the claim is made out". Moreover, he says that he believes that the claim is clearly unfounded. Where there are clearly unfounded claims, it is not remotely a breach of any principle of justice that the person deciding that the claim is clearly unfounded also says, "I am not going to delay the consequence of the claim's failure because I believe that this is a clearly unfounded claim". That does not infringe any principle of justice. As many noble and learned Lords will know, that happens quite frequently in courts. For example, when applications are made for injunctions and the court believes them to be hopeless, the court will say, "Not only are we not going to grant the application; we are not even going to grant one pending any application for an appeal". It is a question of a judgment that has to be made at the first stage.

If people make applications down the line after the first stage and the applications are based upon clearly unfounded claims, then no legal principle is infringed by saying that they have to leave the country before they make those applications. On the basis of the hypothesis put forward, if the application is clearly unfounded, the Secretary of State will be bound to conclude that the applicant does not face a significant risk of torture or persecution if he returns to his country of origin.

It must be faced that some cases are without merit. There is no reason why a person who has made such a claim should then be able to remain here in order to pursue a hopeless appeal. These claims might involve an applicant expressing a fear of something happening that has no objective basis whatever, or fears that the state cannot protect him from attack by non-state agents when it is clear that the state does provide

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effective protection. Of course, we would not remotely consider any of the sorts of examples given by noble Lords as ones that were clearly unfounded. However, it is easy for us all to think of cases in which clearly unfounded applications are made.

In some cases—considering the facts, such as the nature of the country referred to or the basis of the claim being made—one can almost immediately say, "That is not likely to succeed. Even if all the facts were made out, it would not remotely constitute the relevant risk required to satisfy the basis of an application". The noble Earl, Lord Russell, is of course right that some cases which look weak initially look stronger when one examines them more closely. However, there is a category of cases that readily suits the description of unfounded.

Earl Russell: Does the noble and learned Lord remember a case when, after a particularly notorious murder of a policeman, a Home Secretary got up in the Commons and said that the police had arrested the guilty party? The wrath of the House of Commons descended upon him. Why are the cases different?

Lord Falconer of Thoroton: What is happening here, as the noble Earl knows, is that the Secretary of State is required in each individual case to consider all the material before him in relation to the application, and to decide on the basis of fact and law whether such a claim has been made out. It is an adjudication that the law gives to him. It is not like the type of case to which the noble Earl has referred; namely, one in which the Home Secretary expresses an opinion in Parliament in respect of something on which a court has yet to adjudicate. In the particular sorts of cases to which we are referring, the first stage of the process is the Secretary of State himself making the adjudication.

Lord Avebury: Is the noble and learned Lord aware that the Secretary of State was certifying Zimbabwean cases as manifestly unfounded right up to the point in January when he reversed the decision not to grant all of them temporary leave to remain in this country, and that some of those cases went to appeal and were upheld by the adjudicator?

Lord Falconer of Thoroton: That does not detract from the basic point I am making; namely, that it is a decision—as it was in the Zimbabwean cases to which the noble Lord refers—for the Secretary of State to make. He must adjudicate on the basis of the facts before him. He may be wrong, he may be right but he must adjudicate on the basis of the facts before him.

Lord Mayhew of Twysden: I am grateful to the Minister for giving way. It is tiresome to be continuously interrupted. However, I refer to his very last remark. Can he really expect someone who, in pursuance of this proposal, has been sent back to Zimbabwe or to some equivalent country to accept that no legal principle has been infringed? As the noble and learned Lord, Lord Archer of Sandwell, said, we are talking about people, not symbols or pawns to be

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pushed about on a board. We were given an analogy earlier about an injunction being refused even while an appeal was waiting. However, in that instance no one was being sent back to a country in which they claimed that they would be tortured or oppressed. That is totally different.

Lord Falconer of Thoroton: The noble and learned Lord is absolutely right to say that this is about people. The procedure would empower the Secretary of State to say that a claim was clearly unfounded. That decision made by the Secretary of State—as I think that the noble Lord, Lord Thomas, or the noble Earl mentioned—is susceptible to judicial review. If there is a proper basis for the Secretary of State to conclude that the case is clearly unfounded, that decision will be upheld. If there is no proper basis, the decision will be quashed.

Obviously, one of the factors for the Secretary of State to consider before reaching his conclusion that a case is clearly unfounded—to use the words of the statute—is the consequences if he reaches the wrong conclusion. We are discussing a decision for a responsible Secretary of State to make in accordance with the facts and the law—one that is protected by judicial review. The courts are able to intervene where there is no proper basis for the Secretary of State to reach that conclusion. Of course, no one would want any decision made that a case is clearly unfounded when the sorts of risks to which Members of the Committee have referred exist.

However, the Committee should address the sorts of cases where there are clearly unfounded claims and where a claim is entirely without merit. Is it right that the applicant should be able in those circumstances to use the process to stay longer? That is the conundrum that this section seeks to deal with. We believe that—

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