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Lord Falconer of Thoroton: My Lords, of course the Government are fully committed to protecting those at risk of torture if returned to their country. Applicants who show that they face a real risk of torture if removed from the United Kingdom will have established that they have a well-founded human rights claim and—in many cases, depending on the reasons for that torture—that they have a well-founded asylum claim. In such instances, the question of certifying a claim as clearly unfounded under Clause 92 would obviously not arise. Far from being clearly unfounded, the claim would be well-founded and leave to enter or remain would be granted.
Lord Clinton-Davis: My Lords, then how did it come about that the Home Office made the initial, perverse decision in the cases cited by my noble and learned friend Lord Archer?
Lord Falconer of Thoroton: My Lords, as the subsequent adjudications revealed, those were mistaken decisions. I have not for one moment suggested that the Home Office and the IND are infallible; they plainly are not. I am sure that my noble friend Lord Clinton-Davis and the noble and learned Lord, Lord Mayhew, would be the first to agree that there is no system that does not make mistakes. I think
that the critical question is the extent to which the systems proposed will adequately pick up the mistakes that are made.I should like to answer directly—which I have not done before—the point made so clearly by the noble and learned Lord, Lord Mayhew. The general policy for the past few years has been to have a single pair of eyes for the making of a decision. In any case, however, the officer dealing with the case can seek the advice of a senior caseworker. I cannot tell the noble and learned Lord whether the officers dealing with the three cases cited sought the advice of a senior caseworker. However, the procedure in future for clearly unfounded cases will be that every case is looked at by two officials specially trained in such cases, and there will be additional quality checks on top of that. So under the new arrangements the system will be different from that which applied to the three cases to which the noble and learned Lord, Lord Archer, drew attention.
The Earl of Listowel: My Lords, just on a point of information for the next stage, will the Minister outline how much regular supervision these workers receive? Good supervision and a proper system of regular supervision are such important factors in the effectiveness of those working on the front line. If it is available, I would appreciate more information on that point for the next stage.
Lord Falconer of Thoroton: My Lords, I shall try to write to the noble Earl on that point before the next stage.
The amendment is addressed at a different target from that of risk of torture to someone if he or she is returned. It is concerned not with the future prospect of torture—that is, whether removal would result in a person being tortured—but with the possibility that a person has in the past been subject to torture. The two matters are obviously related but they are different concepts. It is that difference which leads us to resist the amendment.
There are two main issues to address. The first is the relationship between previous torture and the prospect of future torture or other forms of serious harm. The policy underpinning Clause 92 is that where an asylum or human rights claim can objectively be regarded as being clearly unfounded, it is reasonable and sensible to deny a person an in-country appeal right against the refusal of their claim. The clause does not go on to define what is a clearly unfounded claim although it does create a presumption that claims from residents of certain countries will be clearly unfounded. We think that it is better to leave the term without further definition as its general meaning is well understood by the courts. Indeed, just a week ago the House of Lords restated the position in its judgment in Thangarasa which the noble Lord, Lord Lester of Herne Hill, who is not present at the moment, referred to before the dinner break.
Accepting this amendment would, therefore, mark a change from that open approach. It would provide in effect that where a person had in the past been tortured
in the country to which we proposed to return him or her, that claim could never be clearly unfounded. Such an approach would, in our view, be wrong. We accept that evidence of past torture or persecution is often a good indicator that a person would risk torture or persecution if returned to that country. So there will often be cases where applicants who demonstrate a real possibility of past torture will be successful in their claims.There will also be some cases where we do not consider that the torture or persecution will be repeated and, accordingly, we refuse the claim but where we do not think that the claim is clearly unfounded. In such cases certification under Clause 92 would, of course, not be appropriate. But we do not discount the possibility that in some cases a person who may have been tortured in the past would in the present day have a clearly unfounded claim. Because country situations can change substantially over a period of time, it is perfectly possible that someone who was tortured 15 years ago would today face absolutely no risk of torture or persecution in their home country.
The consideration of an asylum or human rights claim involves a forward-looking assessment of risk based on present-day country information and the experiences the applicant has faced in the past and may face in the future. One cannot underestimate that the evidence of past torture is an important part of this consideration, but the amendment would elevate it to a factor which trumps all others. That would distort the process of assessing the claim—a process which should be a rounded exercise taking account of all relevant factors.
The second issue might be expressed as the argument that the clearly unfounded process is too rapid to handle the claim of a victim of torture—which was the point made by the noble Lord, Lord Avebury, both before and after the dinner break—and that even if it is objectively true that an applicant in those circumstances has a clearly unfounded claim, there is too great a risk of our coming to an inaccurate decision because there may be relevant facts which come to light only after the applicant has been removed. That is the principle underlying the point that the noble Lord made. He referred specifically to the process in Oakington. First, he asked whether it was right that almost all of those claims which might be in the clearly unfounded category would be dealt with at Oakington. Although there may be some exceptions and there may be places with a similar approach to Oakington's, broadly an Oakington-type process will be used in the first instance. I believe that that answers the noble Lord's first question.
Secondly, the noble Lord asks what the process will involve. The possibility of past torture can be identified early on in Oakington in a number of ways. The applicant may mention it directly, although I fully accept the point made by the noble Lord, Lord Hylton, and by my noble friend Lord Clinton-Davis; namely, that people who have gone through the trauma, for example, of rape, which is plainly a form of torture, may be too traumatised to speak about their
experience. However, that possibility may be picked up by the on-site medical team. As the noble Lord, Lord Avebury, knows, and as everyone else who is aware of what goes on in Oakington knows, there is an on-site medical team that is keen to investigate such cases.There is also an on-site legal team that is available to advise applicants. That team, and the medical team, are in a position to seek to draw from applicants enough of the history of such experiences to establish whether or not there may be an issue that is worth investigating. If that is the case, then either the legal or the medical representative can contact the medical foundation—an organisation with which noble Lords are familiar. They are completely free to do so. A referral form can be sent to the medical foundation, which is expert in looking for precisely the sorts of experiences about which noble Lords are concerned. Once the representatives produce a copy of the referral form to the medical foundation, the applicant would be moved out of Oakington, or out of the Oakington-type place, to enable the medical foundation to carry out its examination. A decision on the claim would not be taken until after the medical foundation had completed its assessment.
If the medical foundation finds that there is evidence of past torture, it would normally mean that the claim was not one that merited certification as being "clearly unfounded". So the process in Oakington, or in the places analogous to Oakington, allows for medical or legal advisers to identify whether or not a claim should be referred to the medical foundation. Once that reference is made—there is absolutely no evidence to suggest that references to the medical foundation are being abused as a means of delay; indeed, it is a sensible use of the process—the applicant is taken out of the process which might lead to a clearly unfounded certificate, and the result of the medical foundation's approach is considered.
As I believe I made clear, if the medical foundation finds that there is evidence of past torture, that would normally lead to the applicant's claim being taken out of the route that could lead to a "clearly unfounded" finding. I cannot rule out some exceptions to that because circumstances may have changed so significantly in an individual's case since the torture occurred that there may clearly be no risk to the person if now returned. Plainly, those would be exceptional cases; for example, torture 15 years ago in a country that has since gone through a regime change.
I have outlined how the system works. That is my answer to the point made by the noble Lord, Lord Avebury—that the process does not allow long enough for such determination. He referred to the seven-to-10 day period. If the on-site experts consider that there might be something that could lead to the belief that there is some risk of torture, they have the
power to refer the matter to the medical foundation; indeed, there is no restriction in that respect. We then await the medical foundation's conclusion—
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