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Lord Goodhart: I am grateful to the noble and learned Lord for giving way. He said that if something arises afterwards which shows that there are grounds for appeal, then the certificate will not be given. But is it not the case that, under the 1999 Act procedure, the one-stop shop on the face of the Bill only bars the subsequent appeal if it could reasonably have been included in the one-stop statement made on the original occasion? Why is the same type of protection of reasonableness not included on the face of the Bill now?
Lord Falconer of Thoroton: Certificates can be granted under Clause 84 only if the Secretary of State or the immigration officer or person is of the view that the only purpose for advancing the new ground is to delay removal. If it is a legitimate ground that could not have been raised previously, then such a certificate cannot be granted.
Lord Goodhart: That does not apply to Clause 84(2), does it?
Lord Falconer of Thoroton: Perhaps I may return to that point at the end of my submission so that I do not waste time. The critical point is that the certificate which prevents the further appeal can be granted only where its purpose is, as it were, to delay the legitimate removal.
Similarly, Section 76(5) of the 1999 Act prevents appeals against refusal of late asylum claims whether or not an earlier appeal has been determined. Spurious asylum and human rights issues are those most often raised at the last moment solely to delay removal and often in cases where neither element has featured previously; for example, where a sham marriage application has been refused or a student has overstayed and worked illegally. The one-stop system is needed to deal with those who give the terms "asylum" and "human rights" a bad name. Such tactical applications may not only delay removal; they may prevent it altogether if the person takes the opportunity to abscond. The longer a delay goes on, the more difficult it is to detain applicants.
During debate in Special Standing Committee in April 1999, there was general agreement that the one-stop procedure was a positive development. But concerns were also expressed that judicial reviews would increase. The one-stop procedure introduced in 1999 works; and the more people become used to it, the better it will work. If applicants and their advisers know that they must disclose everything at an early stage and that spurious late claims will not get them anywhere, the tactic should not be used any more. Ideally, we should never need to certify a late claim
because late claims should only be due to genuine changes in circumstance. We should be delighted if that were the case.
Earl Russell: Does the noble and learned Lord understand that in many communities from which asylum seekers come women who report to being the victims of rape risk disgrace and danger within their own community, as well as any penalty that they may suffer elsewhere? Therefore, when there is a late report of, for example, rape, how can he tell, until he has conducted a hearing, whether it is spurious and intended to prevent removal or whether it is for self-defence against one's own community?
Lord Falconer of Thoroton: As the noble Earl says, there may well be cases where it is appropriate for no certificate to be given. Equally, there will be cases where it is perfectly possible for a sensible officer acting on behalf of the Secretary of State to say, "It is pretty obvious that this is a late point raised simply to delay". The disagreement between the noble Earl and myself is that he rightly identifies cases where there will be real difficulty, in which case, of course, no certificate should be given. But I respectfully submit that, equally, there will be cases where it is fairly obvious that the late claim is made simply to delay removal and that is why it is being raised. It is clear cases such as that with which one is concerned and not the type of case referred to by the noble Earl where there can be a legitimate debate.
Earl Russell: I believe that what the noble and learned Lord has said is common ground between us. I do not understand how he recognises the difference between the cases.
Lord Falconer of Thoroton: It is a matter of judgment. I believe that the noble Earl is now moving his position. He shook his head when I said that certain cases were clearly raised in order to delay. That is the submission that underlies the 1999 one-stop procedure and Clause l84. I understand what the noble Earl is saying now that he accepts that there will be such cases.
Earl Russell: I do not accept that one can recognise them without a hearing.
Lord Falconer of Thoroton: There is no case so clear that it does not require a hearing. I see—that is the difference between us. That is helpful.
As I said previously, since October 2000 approximately 700 late claims have been certified to effect removal. Only three applications have been made for judicial review. Two of those were refused permission on the papers and one after an oral hearing. There have been no substantive hearings on the one-stop shop since 1999. That is good evidence that the concerns expressed then and now may well be unfounded.
Of course, some people will have been encouraged by the one-stop notice to put their whole case forward at an early stage. The result of that is that the Home
Office, having a comprehensive view of the applicant's circumstances, is able to deal favourably with a case far sooner than would have been the case if the details had been drip fed, which is the consequence of not having a one-stop shop.I have taken time to go back to current legislation so that we can sensibly discuss how we have built upon it and why the opposition amendments should not be allowed to undo what is a fair and successful procedure. Under Section 73 of the 1999 Act, only those who have had an appeal finally determined can have a further application certified. But not everyone appeals, and some of the most abusive cases involve those who claim asylum, then abscond, only to resurface months later when they can reapply to remain and start the whole process all over again. They may even take a quick trip abroad deliberately to achieve the same result. I hope that the Committee will agree that that is unfair. In effect, it is using the system. If one looks hard enough, one can find loopholes to exploit in every system. We want to block this one but without unfairness to the asylum seeker. The system is designed to ensure that the asylum seeker has the opportunity to make the whole of his case.
Under our proposals applicants may be advised on application or soon after that they must state all the reasons for wishing to stay in the United Kingdom. They will be warned of the consequences if they do not comply. By extending the power to give a warning to all applicants we catch those who do not mention asylum or human rights initially, so we can deal appropriately with a tactical claim later. If the application is refused with a right of appeal, the disclosure requirement will be repeated when appeal forms are sent out. We think that it is reasonable, fair and just that, if the opportunity to apply and to appeal against any refusal has been offered, and the applicant chooses not to take it, although warnings have been given, any later application can be certified under Clause 84. That mirrors the effect of Section 76(5) of the 1999 Act in asylum cases but extends it to other types of cases dealt with in this country.
We are also bringing into the system those who are liable to an adverse decision, such as deportation or curtailment of leave, without having made an application. Issue of the one-stop warning will become discretionary so that the system better targets those cases where it is likely to be of benefit. We do not intend to impose the requirement, for example, on every short-term visitor to our shores.
3.30 p.m.
Lord Avebury: As such enormous emphasis is placed on the one-stop notice, can the Minister assure the Committee that it will be distributed in languages that appellants will understand?
Lord Falconer of Thoroton: To be effective the notice must be one that the applicant understands. Perhaps I can check that before I give the noble Lord the assurance that he seeks.
At the same time we have simplified how one-stop works in practice. That has been welcomed, for example, by the Refugee Legal Centre whose briefing speaks of our,
- "simpler and more effective scheme".
Opposition Amendments Nos. 200 to 204, which I suspect are probing amendments, would take away the element which makes one-stop work; that is, the fact that a late application intended to delay by virtue of an appeal no longer has that effect. Having to put the case before an adjudicator would almost inevitably mean that the removal arrangements would have to be cancelled. Every single person whose case is certified will have had the chance to make out an asylum or human rights case to the Home Office in the proper manner. And if they have done so and it has been refused they will have had the chance to appeal. They may apply for judicial review of any one-stop certificate issued in their case and of the decision to refuse the claim, so they are not without recourse. The general principle that the certificate should deny access to the adjudicator has been with us for nearly two years now, but no-one who has been certified can say that they were not required—often twice over—to make their claim at the appropriate time.
The Joint Committee on Human Rights, to which the noble Lord, Lord Goodhart, referred, reminded the Committee (paragraph 112(n) of their report) of the need to ensure that people are not removed before they have had an effective opportunity to ask for a court's help in enforcing convention rights. The one-stop warning given under Clause 103 (which is equivalent to notice now given under Section 74 or 75 of the 1999 Act) actually requires the person to put forward any convention issues that they may have, so that any refusal can go through the full appeal process and not just through the higher courts. It is up to claimants to take that effective opportunity when it is offered by complying with the requirement. But if they do not do so, and their case is certified, they will still have access to judicial review.
Opposition Amendment No. 205 has the entirely laudable intention of ensuring that nobody's claim is certified unless they have had legal advice up to the standard set by the Immigration Services Commissioner. This is a complex consideration. Last week, late at night, we had a debate on this issue. Word would quickly spread that if one avoided seeing any legal adviser, or at least successfully claimed that no one had provided advice, one could continue to submit late claims and acquire new appeals forever. Unless the Home Office has received a letter on headed paper or an interviewer has seen an applicant in the presence of his representative, we have no way of judging whether an applicant has been given good advice or not, and disputes would lead to more opportunities for judicial review.
The Refugee Legal Centre's briefing does not object to the denial of an appeal right when the matter is raised late, but it does object to the possibility that
claimants will have been let down by unscrupulous or negligent representatives and thus have neglected to put forward a human rights or asylum claim.Yet we cannot force people to take advice and we cannot force people to take good advice. Those who intend all along to take the utmost advantage of our system will actively seek out the unscrupulous adviser who for obvious reasons is not registered. We feel that the best solution is to encourage claimants to take the right kind of legal advice at an early stage, and asylum-seekers going through the induction centres will be given guidance, as they will be given guidance on the one-stop process. For others, there are many reliable sources of information. The Citizens Advice Bureaux, for example, will point them in the right direction. Those systems are in place.
I turn to the point raised by the noble Lord, Lord Goodhart. Clause 84(2) applies where the matter was raised at the earlier appeal or where it could have been included in the reply to the one-stop notice that the person will be given before an appeal. If new grounds are raised, they will be considered at the appeal. However, not everyone exercises a right of appeal, so people will be told to raise everything early and they will lose the right to raise it again at the removal stage.
On the point raised by the noble Lord, Lord Avebury, the notices will be in English, but interpreters will be available at the induction centres. The interpreters will be in a position to translate them.
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