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Lord Lester of Herne Hill: My Lords, as the Minister knows, many people who are unfamiliar with our system think it necessary to consult a lawyer before submitting their application. So, a day or a week after their arrival, they go to a lawyer to assist them in formulating their claim. Would that be a credible or genuine reason for the delay to which the Minister earlier referred?
Lord Filkin: My Lords, I shall not be drawn on the exact detail of how the regulations and advice, when prepared, will operate in practice. That will clearly depend on both the nature of the advice and the circumstances. It would not advance our discussions if I sought to engage in such detail. For those who enter our country and claim asylum at ports, the induction process will give them plenty of opportunity to seek advice and to understand how the process operates.
If applicants make their claim at a port, they will receive support. There is no doubt about that. Without a shadow of doubt, anyone who makes a claim for asylum at port will receive full support. If they make the claim in-country, they must show us why they have waited and give us reasonable evidence why they have done so.
I turn to other questions raised. The noble Lord, Lord Goodhart, asked about the standard of proof. Yes, it will be the civil standard of proof. The noble Earl, Lord Russell, asked about the person who walked from Waterloo to Lunar House. Clearly, a person's honest errors will not be penalised. A person
who has made a genuine and honest error should be able clearly to advance that case and not be at risk of penalty. With regard to the question about torture, a person can lodge an asylum application even if he is still collecting evidence to back up his asylum claim. So, in a sense, the evidence about torture is subsequent to the lodging of the claim—although it is clearly relevant to consideration of the claim—so it does not bear on this point.A further point arises from the JCHR's report about the extension of regulation-making powers. It says that the issue of when and how a person arrives is irrelevant to the issue of destitution. When and how a person arrives in the United Kingdom is crucial to whether we can be satisfied whether he is destitute. That enables us to discover for how long they have been in the UK, which is highly relevant to the judgment of whether it was reasonable for them to delay their application. Our intention is therefore to amend the NASS application form so as to require applicants for support to provide us with such information.
I accept that these are important issues, and especially appreciate the importance of the JCHR's comments but, for the reasons that I have stated, the power is necessary if we are to bring order to our system. The JCHR's questions have been good and important and I hope that I have fully answered them. Without seeking to irritate the noble Lord, Lord Lester, if there are points that I have not yet answered, I am unlikely to do much better this afternoon, but I shall certainly not deny him further consideration if that would be helpful.
Lord Lester of Herne Hill: My Lords, before the Minister sits down, perhaps I may say that nothing that he says could possibly irritate me in any circumstances. Of course, what he has said will be studied carefully by the Joint Committee on Human Rights. We are all grateful for what he has said so far by way of explanation, but he has not dealt with three points that we raised.
He explained why, in the Government's view, the burden of proof should be placed on the asylum seeker, but we made three other points about the lack of effective safeguards. First, there is the lack of objectivity in the requirement that a person must claim asylum as soon as reasonably practicable to be entitled to support. Secondly, there is the lack of any appeal to an adjudicator against a decision denying support. Thirdly, there is the absence of any power to provide support pending an application for judicial review of the decision to deny support. We attach great importance to such safeguards; why do the Government not consider them necessary to ensure that human rights are well protected?
Lord Filkin: My Lords, with the leave of the House, before the noble Lord sits down, perhaps I may at least respond on the issue of appeal.
We do not accept that Article 6 of the ECHR necessarily applies, as we do not accept that the receipt of support is a civil right for the purposes of the article. That is especially so because the amendment not only confers no power to give support but prohibits the provision of support. But even if that is a civil right, judicial review is an adequate remedy for Article 6 purposes. Appeal to the asylum support adjudicators would be inappropriate, because they have no expertise on whether the asylum claim was made as soon as reasonably practicable.
If it is claimed that the Secretary of State is adopting an unreasonable stance on whether a claim is late, that can be judicially reviewed in the usual way. It is true that a person will not receive support subject to Article 3 of the ECHR—special needs and children excepted—during any judicial review, but a person does not need support effectively to pursue judicial review. Provided that he passes the usual means and merits test, he will receive funding for his legal challenge from the Legal Services Commission.
I apologise for not responding to the other two points raised. There has been pressure for the JCHR, the House and, sometimes, even pressure for the Government under the timetables.
Lord Lester of Herne Hill: My Lords, I am grateful for the Minister's answers.
Lord Goodhart: My Lords, we object to the principle behind Clause 54. I agree that Amendments Nos. 11 and 12 to some extent undermine that principle. However, Amendments Nos. 10B and 12A do not. They are simply a matter of natural justice. Those amendments would not prevent the Government from withholding support from people who do not make an asylum claim as soon as is reasonably practicable. It is simply a question of the burden of proof.
Someone who fails to provide evidence of the date of his arrival or of the reason for his delay in claiming asylum creates an inference that there was a delay for unjustifiable causes. So we are not here concerned with people who simply say, "We will not tell you anything about how long we have been here or why we have not applied before". We are simply considering cases in which some evidence is produced. In the ordinary manner, there will be an interview and some kind of investigation to decide what are the reasons. In such a case, there is no argument but that the burden of proof should rest on the Secretary of State. As I said, that is simply a matter of natural justice.
The amendment is important, so I seek to test the opinion of the House.
5.59 p.m.
On Question, Whether the said amendment (No. 10B) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 110.
Addington, L.
Alderdice, L.
Allenby of Megiddo, V.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Best, L.
Bradshaw, L.
Bruce of Donington, L.
Campbell of Alloway, L.
Clement-Jones, L.
Dahrendorf, L.
Dholakia, L.
Falkland, V.
Goodhart, L.
Greaves, L.
Greengross, B.
Hamwee, B.
Harris of Richmond, B. [Teller]
Holme of Cheltenham, L.
Howe of Idlicote, B.
Hylton, L.
Jacobs, L.
Joffe, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
McNally, L.
Maddock, B.
Mar and Kellie, E. [Teller]
Methuen, L.
Monson, L.
Newby, L.
Oakeshott of Seagrove Bay, L.
Oxford, Bp.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
St. John of Bletso, L.
Sandberg, L.
Scott of Needham Market, B.
Sharman, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Steel of Aikwood, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
Acton, L.
Alli, L.
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gilbert, L.
Gladwin of Clee, L.
Golding, B.
Goldsmith, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Janner of Braunstone, L.
Jay of Paddington, B.
Jeger, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kingsland, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Nicol, B.
Pendry, L.
Pitkeathley, B.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Rooker, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Turner of Camden, B.
Walker of Doncaster, L.
Warwick of Undercliffe, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
6.10 p.m.
[Amendments Nos. 11 to 12A not moved.]
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