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Lord Judd: I am grateful to my noble friend. Not many of those putting forward the point that I tried to make would argue for the free movement of labour; we do not think that it is a practical proposition. We are, however, saying that the system is flawed. In a flawed system, we must be careful—in the language we use and the way in which we deploy our arguments—that we do not suggest that the unfortunate victims of this flawed system are pariahs. We should recognise that they are victims of a flawed system. Of course, we have to operate the flawed system as best we can, and that requires firmness. However, the language and the culture surrounding it are terribly important.
Lord Filkin: The language is important. Many of those trafficked into this country are victims of the system. At the same time, we are getting into 16th century theology, as they also have some free will and some measure of responsibility, albeit they may be trapped in particularly difficult circumstances. I shall not go further into that as it would delay our proceedings.
The noble Earl, Lord Russell, asked about "reason to believe". A belief must be reasonable if there is no expressed requirement on the face of the statute for the belief to be reasonable. Therefore, it is also judicially reviewable.
There was some debate about the differential between benefits in European Union states. These amendments are not arguing that our welfare support to asylum claimants is too great. That is why we have been arguing with our European Union colleagues about the importance of seeking to establish minimum reception conditions for asylum claimants across the European Union. In practice, the standards that are close to finalisation will produce a levelling up. They are not likely to require the United Kingdom to do much, if anything, to our standards. The amendments are not an argument or an attack on welfare support but address the issue of whether people should be entitled to the welfare support that the state provides.
The noble Earl, Lord Russell, is right about the role of world events. I shall not go further into that now, for reasons that I have already given. Similarly, I shall not deal now with our welfare support levels compared with those of other European Union countries, although I should be happy to correspond on it with Members who are interested.
As to the more specific issue of Article 3 of the ECHR, it is accepted that, in certain circumstances, it is possible for the withdrawal of support from an asylum seeker or former asylum seeker to constitute treatment within Article 5 of the ECHR. Such withdrawal of support is clearly capable of being so treated. The mere fact that a person is destitute does not necessarily mean that he has reached the high threshold which the European Court has held is required before there can be a breach of Article 3. This
high threshold has been held to be reached in cases where, for example, a person is to be returned to a country where he will face torture. The fact that someone is homeless does not necessarily mean that there has been a breach of Article 3.I shall not go into more detail on that point, but I may write to the noble Earl, Lord Russell, about it. However, we are talking not about the withdrawal of support, but about the decision not to grant support. I think that that has a significant bearing on how the law will apply in practice. I say that with my usual caution as a non-lawyer.
There have been some questions about how reasonable it is to expect people to know that they should apply for asylum when they come here. I shall, without prejudice, reflect on those questions. There have also been some good questions about how the Government should publicise such a responsibility. If a person did not know about the requirement, and could make a reasonably persuasive case that they did not know about it to the person exercising the judgment, he or she would clearly not be caught by the provision.
There is a further point; namely, to put it bluntly, it is in the interests of traffickers that the people they traffic into this country should get support as that increases the likelihood that those people will in some cases be able to send sustenance back to their home country and pay their debts. According to our evidence, many if not all traffickers are reasonably well-informed.
The noble Earl, Lord Listowel, asked about a possible rise in the number of rough sleepers. The short answer is that the people we are discussing have been supported up to now and have been living somewhere up to now. However, I take his point about the importance of good information. The noble Earl also referred to the vulnerability of young asylum seekers. All we seek to achieve is that people claiming asylum and support should do so at the earliest possible opportunity. If they are delayed in doing so, it will be open to them to provide full and complete information explaining why. If that explanation is credible, we shall accept it.
I should also make clear the distinction between claiming asylum and claiming support. The clause we are discussing is concerned with claiming support. If a person claims asylum late, his or her case will still be considered in exactly the same way on exactly the same principles. As I say, the clause bears only on the question of support.
The noble Lord, Lord Hylton, referred to an information gap. I believe that I have touched on that matter but I shall reflect on it further to see whether I can add to those comments. I am grateful for the welcome that the noble Baroness, Lady Carnegy of Lour, gave to the amendment and to the need to try to bring more order into the system and to reduce fraud. I say in passing that there have been 167 prosecutions this year alone in regard to people who have submitted multiple applications for asylum and support. In other
words, they have submitted multiple applications in either their own name or different names to access support.6 p.m.
Lord Avebury: Will not that offence be eliminated once the system of cards is universally applied?
Lord Filkin: We would hope so. I merely commented that there is fraud in the system, as I am sure no one in this House would deny. However, it is difficult to quantify how much for obvious reasons.
The proposed new subsection (5) in the amendment prohibits the Secretary of State from providing support. Without subsection (5), subsection (1) might be interpreted as meaning that support should not be provided even if a person has reached the Article 3 threshold. Subsection (5) makes clear that there is no intention to breach Article 3.
Baroness Carnegy of Lour: Is that necessary? Why is it necessary? It simply states that the Secretary of State and those providing support must keep to the law.
Lord Filkin: I heard the point. I have given an initial answer. I do not think that I can do much better than that at the Dispatch Box today. However, I shall write to the noble Baroness. I hope that I shall be able to satisfy her on that point.
The noble Lord, Lord Dubs, asked whether there is a right of appeal if a person makes a mistake. There is not a right of appeal but there are certain safeguards. First, the person is at liberty at any time to ask to put further information before NASS. A person can say, "I have thought further and I want to tell you more about what happened, where I came from and where I have been". That door will be open. Secondly, if a person makes a second application, a second pair of eyes should consider it. That seems right and reasonable. Thirdly, the matter is open to judicial review and ultimately, in certain cases, challengeable under ECHR.
Lord Dholakia: Will the Minister confirm that the staff of NASS and not those of the IND will interview applicants?
Lord Filkin: That is correct. I turn to the comments of the noble Lord, Lord Judd, some of which concern a debate that we may have subsequently.
Earl Russell: If NASS does what we are discussing, would it not be judge and party in its own cause?
Lord Filkin: NASS would act for the Secretary of State and would be under a responsibility to act reasonably. NASS would act under guidance and would be aware of the importance of taking care in arriving at a judgment. I referred to a second pair of
eyes as a means of trying to increase the robustness and the protection afforded by the measure. I hope that that provision is useful to the Committee.I shall not refer to the points made about wider support for the system although I would be happy to discuss that matter outside the Chamber. I believe that I have answered most of the questions that can reasonably be answered at this point in time. However, if I discover when I read Hansard that that is not the case, I shall respond at that point.
Earl Russell: I refer to a material matter on Amendment No. 5. Does the misleading information relate to the claim for support or the claim for entry?
Lord Filkin: I thank the noble Earl for referring to that important question. The measure requires a person to provide full and accurate information not only about his state of destitution but also about the timeliness of his asylum application; it is not concerned with the merits of the asylum claim itself. I believe that that addresses the nub of the noble Earl's question.
In summary, we believe that the measure we are discussing is necessary and that it will lead in time to a more orderly system. The measure will result in those who have a good case for refugee protection having their case heard earlier and will allow us to move towards a more stable system. I hope that that will increase public confidence as regards introducing more resettlement schemes. The measure constitutes a better means of addressing world refugee problems which are not adequately addressed under the current system.
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