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Lord Lester of Herne Hill: My Lords, whenever I hear my noble friend Lord Russell speak, I often think to myself what a great barrister he would have made: he deals with law in a way that ordinary people, even I, can understand. I have one question for the Minister in respect of these amendments. My noble friend raised the issue about the right of access to courts, and the right to an effective remedy. Whatever his position may be on this amendment, is the Minister able to give an assurance that destitution and the consequences of government action will not be used in a way that interferes with the right of access to justice in the determination of civil rights and obligations, or in a way that frustrates the provision of an effective remedy for claims of breach of the European Convention on Human Rights or of the refugee convention?
If the noble Lord is able to give those assurances to the House, my position with regard to this group of amendments would be materially affected. If not, it seems to me that the inclusion of such amendments in the Bill would constitute an important safety net.
Lord Hylton: My Lords, I support the intention behind this amendment. We all wish to see the absolute minimum number of people kept in detention. However, a very small drafting point has occurred to me. I believe that the amendment might be improved by leaving out the words "facilities of" in paragraph (b).
Lord Filkin: My Lords, as the House knows, these measures are about the issue of "benefit shopping", which we previously discussed. Such measures originated from a number of local authorities experiencing acute pressures regarding people who had refugee status, or nationality, in other countries coming to the United Kingdom and then claiming support from local authorities when other forms of support were not available.
Amendment No. 10 would apply to the withholding of support under paragraphs 6 or 7 of Schedule 3, which deal with the withholding of support from failed asylum seekers, or those unlawfully in the United Kingdom. Section 4 of the Immigration and Asylum Act 1999 deals with what is known as "hard case support", which is provided at the discretion of the Secretary of State. This amendment would force the Secretary of State to provide "hard case support" (where Section 4 allows him to) to a person where the withholding of support under paragraphs 6 or 7 would render him destitute.
Therefore, the amendment would go against the whole purpose of Schedule 3, which is not to allow support under any of the provisions of the 1999 Act, as detailed in paragraph l(j) of Schedule 3. The reason here is that we are clear that local authority budgets must be preserved for those most in need. Indeed, local authorities made strong representation to government to be given the protection that these measures provide. Failed asylum seekers who can leave but refuse to do so and persons unlawfully in the UK should not be supported. As I recollect, we said in Committee that there would be an offer on the table of transport back to the country where they had legal right to remain—a legal right of residence. Accordingly, I cannot accept the amendment, which would be contrary to the whole ethos of the measures contained in Schedule 3.
Amendments Nos. 75 and 76 would have the effect of allowing the forms of support listed in paragraph 1 of Schedule 3 to continue to be provided to failed asylum seekers and persons unlawfully in the UK, if, for example, an individual commences judicial review proceedings following a decision to remove him. They would also allow support to continue if an individual claims that any ECHR right would be breached if he were to be removed until such time as any appeals or judicial reviews against any adverse decision have been concluded. Finally, they would allow support to
continue if an individual makes a request for leave to remain outside the immigration rules, again, until such time as any appeals or judicial reviews against any adverse decision have been concluded.Failed asylum seekers have had their asylum claims finally determined. If failed asylum seekers wish judicially to review the Secretary of State's decision, they should do so before, or immediately at, the time of removal directions being set. The measures in Schedule 3 apply to failed asylum seekers only once they have failed to co-operate with removal directions issued in respect of them. It is important to stress that a failed asylum seeker will already have had the opportunity to raise at their appeal hearing against the refusal of their asylum claim all reasons why they should not be removed from the UK, including all ECHR reasons. Indeed, the legislation requires them to do so. Therefore, it will only be in exceptional circumstances that further ECHR points, raised after an applicant's original asylum claim has been refused and any appeal dismissed, will constitute a fresh application and be recorded as such. We should not set up a system by which a person gains from delaying raising their reasons for seeking to stay in the UK. Rather, we seek to make it clear that all issues should be raised at the relevant point earlier in the process.
Asylum support is also not available to those who are failed asylum seekers refusing to co-operate with removal directions who allege that other ECHR articles—for example, the Article 8 right to respect for private and family life—may be breached by removal. Likewise, support is not available if a failed asylum seeker applies for leave to remain outside the immigration rules but not including Article 3 claims. That is because it has been established that such persons do not fear persecution or torture on their return and can leave the UK or be removed by the Immigration Service. So, if they are destitute they can leave the UK to alleviate their situation and go to the country in which they have a right of residence.
For those reasons, persons who are here unlawfully should not receive any form of support. If they are genuine asylum seekers they should claim asylum. Then, so long as they meet the new eligibility criteria, they will be supported by NASS. To grant support in those circumstances would act as a pull factor, attracting individuals to enter the UK or remain here unlawfully.
Paragraph 1 does not prevent the exercise of the power relating to the performance of a duty to the extent necessary to prevent a breach of a convention or Community treaty. For those reasons, the amendments attack the fundamentals of what we believe is necessary to protect local authorities from unreasonable expenditure and to encourage those who have rights of residence elsewhere to move to places in which they can live after they have exhausted all the proper appeal processes.
Earl Russell: My Lords, I am well aware of the burden placed on local authorities. Indeed, I have co-operated with the noble Baroness, Lady Gardner of Parkes, in raising that on many occasions. That
pressure was placed on local authorities by the unreasonable action of government in withdrawing support from those who should have continued to enjoy an entitlement to it. That is why the judgment of Mr Justice Collins on the National Assistance Act 1948 became necessary. I am extremely disappointed that the Minister has continued to invoke claims of benefit shopping.In Committee, I quoted to the Minister Eurostat figures that show that within the European Union our benefit levels are in the lower half of the EU range. I shall not quote those figures again. If applicants are attracted here by the belief that they will receive genuine benefits, that must prove that those applicants are mistaken. If they come here in large numbers they may do so for other reasons or because of a mistaken belief in the level of benefits.
I have previously asked the Minister and I ask again: what attempts are made to publicise, on the streets of Baghdad, Kabul, Freetown in Sierra Leone and other places from which asylum seekers regularly come, British benefit levels for asylum seekers? I do not believe that those attempts are very significant. The Minister cannot rely on that argument.
I am extremely sorry to hear an attempt to exercise legal rights being described as a refusal to comply with removal directions. Those removal directions have on occasion been opposed in error. The Minister may remember the case of Chahal, which went to Strasbourg. A very strong judgment indeed was given against this country. That was not an event that I enjoyed and I do not expect that the Home Office enjoys repeating its details. I remember another case of someone who, during the passage of the 1996 legislation, was returned to Belgium because he had passed through that country on the way here. That was done without regard to the fact that Belgium, in contempt of Article 31.1 of the refugee convention, refused to admit him to its process because he had entered the country illegally under false papers. He was simply passed on, on the pass-the-parcel principle, from Belgium straight back to Zaire, from where he had come. I do not regard that as a satisfactory situation and I am afraid that I cannot regard the Minister's reply as a satisfactory reply, either.
Before we return to these questions on Third Reading, I ask the Minister to read the Home Office's own research, which has been published since we completed the Bill's Committee stage. It shows that benefit levels are a negligible factor in attracting asylum seekers to this country. That fact, and the fact that people come here in spite of the lowness of our benefit levels, sustains the view that ignorance of benefit levels among asylum seekers is likely to be pretty high. I hope that we will not hear that argument again. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10A not moved.]
5.15 p.m.
Clause 54 [Late claim for asylum: refusal of support]:
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