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Earl Russell: My Lords, at present a high proportion of successful applicants are applying in-country. During 2001, 46,160 people, or 65 per cent of the total, applied for asylum in-country. There is no evidence to suggest that their applications were less successful than those who applied at the port of entry. There were 21,105 in-country applications granted asylum or exceptional leave to remain compared to 10,915 port applications. A further 17,475 in-country applications were granted asylum or ELR on appeal compared with 4,445 port applicants. It looks as if the applicants in country have a slightly better chance of success. Therefore, there is no reason to suppose that their applications are in any way inherently less meritorious.
Such applications may be made in perfectly good faith. The noble Lord, Lord Joffe, is in his place so I beg his pardon if this is not so. It was the noble Lord who said that he did not realise it was necessary on arriving in the country to claim asylum. I have mentioned before the case of ex parte B in 1996. B walked from Waterloo to Lunar House to claim asylum in the mistaken but entirely honest belief that the headquarters of the Immigration and Nationality Directorate were the proper place to claim asylum. That is an honest error, for which total deprivation of support is a grossly disproportionate error.
I am extremely grateful for the Minister's comments in Committee regarding torture. I have come to know him as a man who is just, generous and careful, and I respect him deeply for that. The difficulty is, first, as I have heard my noble friend Lady Williams of Crosby argue many times in this Chamber, it often takes a long time and great difficulty and danger to obtain evidence of torture from abroad. Secondly, once the evidence of torture is available, it often takes a long time for the lower reaches of the Home Office to believe it.
I remember a case of one of the Campsfield nine, about which I had an extremely long correspondence—triangular in conjunction with the firm of Christian Fisher—with the noble and learned Lord, Lord Williams of Mostyn. It took us many months, and I suspect the personal intervention of the noble and learned Lord, to convince the Home Office that in that case the evidence of torture was perfectly genuine and the asylum claim well founded.
If there is a total deprivation of support, what are such people to live on while they are trying to establish that they have been tortured or that if returned they
face a serious risk of torture? There are risks here which have not been considered. Also, the Home Secretary—this is another case of him legislating in haste—has built another stage into the asylum application process. For as long as I can remember these debates, the Home Office has been asking for the process to be speeded up. However, now we have brought into the process the question of deciding whether the application was made as soon as was reasonably practicable. That is a technical question. It involves knowledge of conditions in a great many countries around the world, with which I do not believe NASS to be conspicuously well equipped.It will not have escaped the Minister's attention that the performance of NASS has not received entire and universal applause. It will, I am sure, not have escaped his attention now that if we put into the asylum process another and complicated hurdle, it will all take a great deal longer than it does now. That is not what we want; it is not what the Home Office wants, and I do not believe it is what anyone wants, but that will be the effect of leaving the Bill unamended.
Lord Hylton: My Lords, the right reverend Prelate the Bishop of Oxford put the point concerning the burden of proof extremely well and clearly. I hope he will be pleased to know that what he is saying is confirmed by the Home Office's research study 243. That states:
- "There was very little evidence that the sample respondents had a detailed knowledge of: UK immigration or asylum procedures; entitlements to benefits in the UK; or the availability of work in the UK".
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Goodhart, in moving the amendment made reference to the fact that the amendments seek to amend the new clause tabled last week by the Government at recommitment. He said that because of certain rules he was not able to strike that out. That of course is simply because the noble Lord tried last week and failed. So who can blame him for having a second go in a different way?
At this stage I repeat the clear commitment that I gave from these Benches last week that we support the objectives that the Government seek to achieve by the new clause. Last week I spoke about the importance I attach to the guidelines that the Government are committed to introduce under the clause. I covered those issues at cols. 982 to 984 on 17th October. I shall not repeat them. I was very grateful to the Minister for the care with which he answered my rather long list of questions. I have considered his answers since then, and I am completely satisfied on the points.
There is a significant change in that the Joint Committee has had an opportunity to report on these matters. We have a duty to thank it for acting so speedily on such a significant matter. My noble friend Lord Campbell of Alloway was right to point out that
this is the opportunity for the Government to give a response on that matter. I shall listen carefully to what the Minister says, but I put on the record that we support the Government in the objective that they seek in the clause.5.45 p.m.
Lord Filkin: My Lords, I remind the House why we think this measure is necessary. The noble Earl, Lord Russell, is right: there is a high level of in-country asylum claims; in other words, only about one-third of asylum claims are made at the port. That does not mean that those two-thirds who apply in-country are automatically to be seen as not genuine asylum seekers; neither does the reverse apply: that those two-thirds are genuine asylum seekers.
The issue is about trying to get more order into the system. By that I mean that there are a substantial number of people who enter the country and work illegally. We know that when their visa or right to stay in the country expires a substantial number of people continue to reside in the country, working or not, because they wish to do so. Increasingly, when they are apprehended by the police or by immigration officials, they claim asylum and claim support at the same time. Nothing can be done about their claim for asylum. Indeed, there is nothing that we would wish to do about their claim for asylum. That should be considered.
There is clearly an issue about whether people in the circumstances that I have described should be supported by the state while they make an asylum claim which, on all the evidence, appears to be substantially late. I remind the House, without going into the issue, that it is not fundamentally an issue of funding. The funding figure is substantial—£1 billion a year on asylum support, which is an average cost per person supported of £10,000 per year.
At heart, what we seek is no more or less than to say to people, "We want you to apply at the earliest reasonable possible opportunity if you believe you wish to apply for asylum". To reinforce that point, we are basically saying that state support will be available to people who do so behave and that state support, with some very important exceptions to which I shall come, will not in the alternative circumstances. To be direct about the matter, we believe that that is reasonable and necessary in the world that we occupy.
Therefore, we cannot accept amendments Nos. 11 and 12 because they would undermine the intention of the Government's measures for dealing with late claims.
For the reasons I have outlined, we need to introduce measures which will help us to have more order and control in the process. Our proposed changes to the support system strengthen our strategy of moving towards a more streamlined, managed and fair system than we currently have.
It is entirely reasonable to expect those who are genuinely in need of international protection to claim asylum as soon as reasonably practicable. It is not helpful to the achievement of an effective asylum
process if there is no encouragement to applicants to come forward and to be frank with us. We believe that applicants are likely to modify their behaviour and to come forward at an earlier stage. The aim is to produce an orderly and managed process.Our new measures are different from the position created in 1996. Clause 54 will not affect families with children. That is the direct response to the JCHR question. Support will be provided to asylum seekers with dependent children under 18, even if they have not applied for asylum as soon as reasonably practicable. In addition, those with care needs will be able to access national assistance, as they can now, if they have a need for care and attention which is not solely due to destitution or the effects of destitution, whether or not they applied early or late.
The Government are unable to accept Amendment No. 10B. The purpose of Clause 54 is to establish that there should be no presumption of support for an asylum seeker who makes his claim after entry to the UK, unless he can satisfy the authorities that he has made his claim as soon as he reasonably could have done. The amendment starts from the opposite viewpoint; namely, that there should be a presumption of support unless the Secretary of State can prove that a person has not made his claim without undue delay.
As I said when we considered this clause last week, it is an entirely reasonable expectation that those who want the United Kingdom's protection should claim asylum at the earliest opportunity. That will enable us to help the genuine cases by allowing access to our integration arrangements as soon as possible. At the same time, it will increase the likelihood of those who do not need our protection returning home.
I make no apology, therefore, that the clause is aimed at helping to achieve that situation. We believe that literally tens of thousands of people who make in-country applications could have claimed asylum on arrival.
I turn to the amendment. The Government's view is that a person who has a genuine reason for failing to claim asylum as soon as reasonably practicable will be able to explain what that reason was. There is clearly a duty on the Secretary of State to listen to that. Similarly, if the claimant is destitute, he will be able to show why that is the case. It is easier for an asylum seeker to tell us why he has made a late claim than for the Secretary of State to establish that. The information and the evidence is with the asylum claimant; it is not with the Secretary of State. Therefore, it is fair to expect claimants to put that evidence before the Secretary of State. They are in possession of the information of why they have not made the claim. Therefore, it is right that the burden of proof is on them.
We are asking no more of asylum seekers than we ask of our own citizens. Effectively, if they wish to claim benefit they are expected to co-operate with the processes of government. We have moved away from a world where there are almost automatic benefits irrespective of the reasonable requirements of the state. Therefore, we can see no reason why there should not be such requirements in these cases.
I turn to the very important issues raised by the Joint Committee on Human Rights. I join others in thanking it for its work. I accept the invitation of the noble Lord, Lord Lester, to respond to those important considerations, and I shall do so now.
As regards Article 11.1 of the International Covenant on Economic, Social and Cultural Rights, Article 11 does not set an absolute standard. It is perfectly consistent with Article 11.1 for a state to impose reasonable conditions on the receipt of support and to guarantee only a lower level of support where a person has failed to comply with the condition in question. It is therefore reasonable to require asylum seekers to make their asylum claims as soon as reasonably practicable and to make their receipt of full support conditional on that. If they fail to do so, support will still be available to comply with Article 3 of the European Convention on Human Rights, as well as support for families with children and those with special needs, irrespective of whether they apply late. All of that is fully consistent with Article 11.1.
On specific legal response on the burden of proof, I fear that we disagree with the JCHR report. If people claim to have a well-founded fear of persecution under the refugee convention, that should be one of the first things that they communicate to the authorities after they arrive in the United Kingdom. Their reason for coming here is to claim asylum, not to seek work or to visit friends. It is therefore perfectly reasonable to expect them to register a claim for asylum at the first reasonable opportunity.
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