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The Lord Bishop of Oxford: My Lords, I thank the Minister for giving way. I am grateful to him for his helpful and clear explanation. Will applicants be told about the right of judicial review? If they are and a good number avail themselves of it, will we not have
the situation so powerfully described by the noble Lord, Lord Lester; that is, a much longer and more expensive process?
Lord Falconer of Thoroton: My Lords, as regards the first point, they will have access, for example, in the Oakington facility, to legal advice, which will tell them of their rights in relation to judicial review. The question of whether or not the prognostications of the noble Lord, Lord Lester, are correct depends on two factors. First, will the courts by and large uphold the "clearly unfounded" certificates by, for example, refusing applications for permission. Secondly, how long will they take to deal with them? We believe that if the courts become satisfied that there is a reliable process of certification, although it is a matter for the courts to determine as they deal with their business, it is extraordinarily unlikely that the system described by the noble Lord will come to pass.
Lord Judd: My Lords, I am grateful to my noble and learned friend for giving way in the context of what is—I agree with the right reverend Prelate—a full explanation. However, perhaps he could make one clarification. A moment ago he used the word "administratively". How can we guarantee that the prevailing culture in which administrative decisions will be taken will not be one which is about managing and controlling the numbers rather than one which states, "If anyone here is entitled to asylum, we are jolly well certain they will get it"?
Lord Falconer of Thoroton: My Lords, to answer the noble Lord: first, because the decision is one which has to be taken quasi-judicially; and secondly, the courts providing, as the noble Lord, Lord Lester, rightly identified, an effective remedy, are there to ensure that they do that. They are not giving effect to any sort of political direction but exercising a quasi-judicial function in which they have to evaluate the merits of each individual claim.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. Am I not right—I refer to the evidence given by the Home Office in answer to the JCHR Select Committee, reported in our 21st report—that at the moment there is a concordat between the Government and the High Court whereby a person who is detained and subject to removal, and who applies for judicial review, is given only three working days to lodge an application with the High Court? That is the first question I should like to explore; whether this is an effective remedy. If so, is that satisfactory?
The second question I ask the noble and learned Lord is why on earth, if we have this serious problem, can we not have a simple procedure whereby the Home Office goes to the adjudicator, who is the expert judge, on a strike-out procedure and says, "This is manifestly ill-founded. Will you decide that straightaway as a preliminary issue?", rather than bringing in High Court judges and the complexity and expense of judicial review, with appeals to the House of Lords and
so on? Why can there not be a speedy and effective remedy before the specially trained and appointed adjudicator on a strike-out, where the Home Office puts its case, says that it is manifestly ill-founded and the judge decides?
Lord Falconer of Thoroton: My Lords, as to the first question about the concordat, perhaps I may get details before I venture into an answer.
As to the noble Lord's second question, why not have a procedure whereby the adjudicator decides the question, that in fact is reflected in the amendment of my noble and learned friend Lord Archer. The answer is that the certificate stating that the case is clearly unfounded should be given at the first stage of the procedure; namely, when the Home Secretary or the officials on his behalf look at the matter and form a view. Once they form a view that the claim is manifestly unfounded, which is the first stage in the existing procedure, that should be sufficient. We think that judicial review in the High Court is the most appropriate way to ensure that that is properly dealt with.
The noble Lord asks whether we should add another level in relation to that adjudicator. Why? We have a perfectly reasonable system, one that the House of Lords sitting in a judicial capacity have described as an effective remedy. It allows the officials dealing with the claim at first instance to decide and leaves the normal structure of law, which is judicial review, to determine whether it operates in practice. Do not invent a new procedure. That is why we have done it that way.
Lord Mayhew of Twysden: My Lords, it was a policy decision on the part of Ministers—a right, albeit delayed, one—that it was not safe to send Zimbabweans back to Zimbabwe. In what respect will the procedure which the noble and learned Lord has just outlined differ from the procedure operating in those cases where officials in the Home Office said that the anxieties of the asylum seekers were manifestly unfounded?
Lord Falconer of Thoroton: My Lords, I do not want to talk about individual cases because I do not know enough about them. If there is a case where there is a certificate that purports to suggest that the asylum seeker's claim is "clearly unfounded", and it can be demonstrated that there is plainly an argument that it is not, the normal rules of judicial review would provide a remedy.
Without wishing to comment on a particular country, surely if the position is as clear and straightforward as the noble and learned Lord, Lord Mayhew, suggests, it would demonstrably have been a perverse conclusion.
Lord Mayhew of Twysden: My Lords, perhaps I put my question a little obscurely. The noble and learned Lord the Minister was at pains to say that there will be two pairs of eyes which will look at this
administratively. Were there two pairs of eyes or only one pair of eyes in the case of the Zimbabweans and similar cases at the same time? Is it a new procedure?
Lord Falconer of Thoroton: My Lords, what I am seeking to define for the noble and learned Lord is the framework within which a plain error in relation to that can be corrected.
IND policy is not to remove once the applicant has indicated an intention to apply for judicial review. As soon as that intention has been indicated, the applicant is given three days to lodge his application. Once the application is lodged removal is deferred until permission is either granted, in which case it will be deferred for longer, or refused, in which case protection against removal is granted. So, the critical point in answer to the first question of the noble Lord is that the three days apply from the time that the intention to apply for judicial review is raised.
8.15 p.m.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord. Am I not right in saying that the central question that an asylum seeker has to establish is that he or she has a well-founded fear of persecution? That is a question of fact depending on complex evidence that a special adjudicator, such as my wife, listens to for hours and then spends a day writing a judgment on.
Can the noble and learned Lord explain how Home Office officials can be confident of the answer of whether or not there is a well-founded fear of persecution for Roma in the Czech Republic in a particular case and certify that the adjudicator cannot deal with the matter? How can they be so certain, except in the most rare and exceptional cases? If they cannot be so certain, why can they not simply go to the adjudicator, who is the judge qualified to decide those questions independently, for a judicial determination—on a speedy procedure if necessary?
Lord Falconer of Thoroton: My Lords, the process is about identifying those cases which are clearly unfounded, not those where there is an argument both ways and one has to weigh up which way the answer probably falls. It is the ones where there is clearly an unfounded claim. If one is trying to stop a long process continuing, the best place at which to determine whether a claim is clearly unfounded is right at the beginning after the first consideration of the claim. That is the approach that we have taken. We believe it is an approach which is safe and sensible because of judicial review providing an effective remedy to ensure that the right course is taken.
Lord Archer of Sandwell: My Lords, I am grateful to my noble and learned friend for giving way. At the risk of being tiresome, can he explain how, if the purpose of all these proposals is to expedite the processing of asylum claims, that will be promoted by encouraging a plethora of applications for judicial review?
Lord Falconer of Thoroton: My Lords, we believe that, if the position operates properly so that the Home
Secretary is only certifying those claims which are clearly unfounded, then the market in judicial review will inevitably go away. What will happen is that the courts will say, "Permission refused", because it will become obvious that the way the system is operated is one in which the IND is getting the answer right. If it is not getting the answers right, that will emerge in the course of the judicial reviews.I go on in the analysis to deal with the list of countries that have been referred to; namely, those on the face of the Bill. There is a clear rationale for listing the 10 countries in subsection (4). These are the 10 countries which are in the first wave of accession states due to join the European Union in 2004. They have met the stringent criteria that have been laid down by the European Union. At last week's Justice and Home Affairs Council in Luxembourg all member states agreed to a declaration stating that there should be a presumption that asylum claims from these countries would be manifestly unfounded.
That is a clear European Union view, as noble Lords will know, covering a whole range of complexion of government. Given the clear EU view that these 10 countries are generally safe—
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