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Lord Kingsland: I am most grateful to the noble and learned Lord for giving way. Had the Government in response to an earlier amendment been prepared to take a more constructive view about the provision of early legal advice at the induction stage and the stage immediately thereafter, the Minister's response to my amendment might have carried more weight. Perhaps the Minister may take away with him over the summer the thought that there is a clear relationship between our Amendment No. 199 and what the Government are not prepared to do in relation to ensuring that individuals get legal advice at the earliest possible stage.

While I am on my feet, perhaps the Minister will also touch on the point about bilateral agreements to take non-suspensive appellants.

Lord Falconer of Thoroton: On the point of legal advice, I do not know to which precise amendment the noble Lord is referring. I shall find out and will consider what he has said. I should like to make it absolutely clear that we want to encourage claimants to take the right kind of legal advice at the earliest possible stage. We believe that it helps them and helps the process operate in the fairest possible way.

With regard to the point about third countries, each case is to be considered on its merits, no matter from which country the applicant arrives in the United Kingdom. However, it is likely that most applicants who will fall into this category will have passed through the European Union countries en route to this country, and it will be to those countries that they will be returned.

1.15 a.m.

Lord Mayhew of Twysden: The Minister asked us to consider whether, in reality, certain cases were manifestly unfounded. I am very glad to consider that, but, in my view, it happens to be the wrong question. The question with which the Committee is concerned is whether the procedures which this clause provides will lead to a safe determination of whether any application is manifestly unfounded. They will not because they do not, for example, provide for an oral hearing.

The Minister will know, probably better than I do, that there are numerous cases in which, on hearing oral evidence, the court has reversed a decision taken initially on the papers in a case where leave for judicial review has been refused. That is because oral argument is important. In particular in a case of asylum, it is very important to see what the applicant has to say and how he says it.

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On listening to the Minister, I felt that it was as though he could not visualise that a mistake could be made. He said that it is true that judicial review is available, but judicial review is granted sparingly and does not lead to the automatic rectification of every mistake that a Minister may have made. In the briefing prepared by the Immigration Law Practitioners' Association, case after case is itemised where the Minister—we know that it was not the Minister; it was an official, as has already been acknowledged—has certified that the case was manifestly unfounded. Yet it was found on appeal to the adjudicator to be a perfectly well founded case. That is what we are faced with here.

I have listened with my usual admiration for the noble and learned Lord's skill. However, frankly the bland and, if I may say so, completely unreal picture that he conjured up of a person returned to a country whose name he has blackened here in support of his application for asylum, there peacefully to conduct an appeal from afar without sustaining the slightest disadvantage, is so unreal that at this time of night I thought that I was possibly dreaming. I am sorry to put it like this, but I am afraid that the Government deserve to be thumped over this issue, and I believe that they will be because it stinks.

The Countess of Mar: I have listened very carefully to what the Minister said. I have borne in mind the Addison rule, but I am profoundly disturbed by what I have heard from the Minister. We hear of such cases over and over again. We must bear in mind that the Home Office officials who make the decisions have piles and piles of files in front of them and they must get rid of them. That applies right the way through the system. Mistakes will be made. Even with the three tiers of appeal that we have at present, I believe that mistakes can still be made. We must be very careful to ensure that we do not make them.

With regard to the amendment in the name of the noble Lord, Lord Kingsland, perhaps I may suggest that, instead of the words "received independent legal advice", he uses the words "offered independent legal advice". I read it exactly as the Minister did—that is, that it would provide a wonderful excuse for delaying. I believe that if the noble Lord, Lord Kingsland, were prepared to change the word from "received" to "offered", it might make things a little easier.

I am sorry to have come over so strongly but I am seriously concerned that, if we take away this right, we shall cause trouble.

Lord Thomas of Gresford: "In reality" it most certainly is. When the noble and learned Lord said that the applicant must get the right type of legal advice at the beginning, it immediately crossed my mind that the advice that one should receive at the beginning is, "Get your habeas corpus application in now. At least they can't throw you out until they have justified why you are being held for a particular period".

It is a question of procedures. The officials who make the decision that an applicant's case is clearly unfounded are no doubt the same people who will

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instruct the Home Office representative to present the Home Office case in court. They will ask him to present the case that they have already decided by removing the person from the country. How can one put one's case effectively from abroad? I am trying to be as calm as I possibly can.

The procedure involves instructing counsel and lawyers to appear on your behalf. It involves listening to evidence given against you, documents produced against you, and considering and advising the evidence to be given by way of rebuttal. It also involves telling the tribunal, the adjudicator, what your case is and being tested upon it in the ordinary way so that the adjudicator can come to a proper conclusion. To suggest that you can sit in the country from which you have escaped, to which you have been sent back, and effectively present your case is ludicrous.

Lord Falconer of Thoroton: All the examples mentioned by noble Lords relate to cases which are on the borderline where, if you go back you will suffer detriment, prosecution or difficulty. Let us remember that there are cases which are manifestly or clearly unfounded. As the noble and learned Lord, Lord Mayhew, said, the problem is not the principle which says, "If it is clearly unfounded, then to send people back to the country of origin is not in principle wrong", it is the procedure used which is being questioned in order to determine that. The procedure we propose is a certificate from the Secretary of State which is subject to judicial review in those cases where no proper Secretary of State could so certify. It is an administrative procedure subject to judicial protection.

On the second point, namely that no application could properly be made from abroad, as I pointed out earlier, a significant number of non-asylum applications have to be made from abroad. No one suggests that they are ineffective applications. That is the reason that we proceed with Clause 82. That is the reason that we seek to resist the amendments put forward by the noble and learned Lord, Lord Archer, and the noble Lord, Lord Kingsland.

Lord Archer of Sandwell: The whole basis of my noble and learned friend's argument is that the expression "manifestly unfounded" and "certified by the Secretary of State to be manifestly unfounded" are synonymous. That is precisely what is at issue in this case. The fact that a government Minister has said something is not simply conclusive: it makes it true. My noble and learned friend said that courts sometimes find that something is manifestly

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unfounded. I hesitate to say this to my noble and learned friend because in his career it would certainly rarely have been true, but that would have failed him an examination in elementary logic. The whole purpose of a court is that it is part of the judicial machinery to examine and decide the position. The Secretary of State is not in that position. The whole of our immigration law is based on the fact that the Secretary of State is not in that position. Still less are busy officials of the Home Office in that position. As my noble friend Lord Judd said, the Government are incapable of considering it possible that they may be wrong.

I say only this. I am grateful to the noble Lord, Lord Avebury, and to the Refugee Legal Centre for placing in my hands a list of cases which were certified by the Home Office to be manifestly unfounded and were subsequently found to be well founded. Perhaps I may be permitted one quotation from the adjudicator who decided the case subsequent to the certificate and said:

"The appellant's case here is the opposite of that, it is in fact manifestly well founded".

Many cases are cited where that can be said.

It is easy to rubbish the argument which unhappily my noble and learned friend found himself compelled to advance. But it is not just an argument. It is not just an exercise in logic. It really is about individuals. The consequences for an individual if it goes wrong are very serious indeed. Of course there is a problem of needing to expedite the whole process. The way to do that is to address the way in which adjudications take place. Some of us have been saying that for years.

No doubt a great deal more could be said on this subject. I have a suspicion that it will be said in subsequent stages of the Bill; perhaps this is not the occasion for saying it. For today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 198 not moved.]

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