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Lord Goodhart: My Lords, is the noble and learned Lord suggesting that the medical foundation, which is a wholly-independent charity, is part of the decision-making process?
10.15 p.m.
Lord Falconer of Thoroton: No, my Lords; I am not suggesting that for a moment. The issue here is whether or not such claims are "clearly unfounded". If, after having investigated a particular applicant's claim, a very reputable body like the medical foundation finds that that applicant has suffered torture, whether physical, psychological, or sexual violence of the kind mentioned by the noble Lord, Lord Hylton, that would normally be sufficient to create enough evidence to make it clear that the case could not be "clearly unfounded". That is the issue.
If a reputable medical expert says, "This is the position", it is like asking whether he then becomes part of the decision-making process. No, that is not the case; he becomes part of the material-gathering process that must be weighed and considered in the making of the decision. Once the medical foundation indicates that there has been torture, it is very unlikely that such a case could be determined as "clearly unfounded".
Caseworkers at Oakington and the analogous organisations have guidance available to them on dealing with potential torture cases, and training is also provided. A rolling programme of seminars from the medical foundation, the UNHCR and the Red Cross has been launched to equip caseworkers to deal fairly and sensitively with those applicants who have suffered torture or other forms of trauma. Those seminars are proving very successful.
If an applicant raises the issue of previous torture or if the trained caseworkers believe that there might be something that is worthy of investigation by the medical foundation, the procedures are in place to deal with that. Should a person not mention torture, should that not emerge during the course of the substantive interview and should the inquiries by the medical and legal experts in Oakington not produce any sign of it, the amendment would not bite because no evidence of torture would have been adduced.
I repeat my opening remarks that the Government are fully committed to providing protection for those who would face torture if removed. The amendment is underpinned by intentions with which we all agree.
Earl Russell: My Lords, I draw the attention of the noble and learned Lord to Section C of the preparatory works to the UN convention of 1951. It states that while it may be possible to remove a refugee to a country that is physically safe for him, a refugee should not be removed to a country in which he has undergone such distressing experiences that he can
never feel safe there. That provision and the amendment say exactly the same. I should have thought that the proper reply to the amendment, if the Minister wished to resist it, would be to say that it is unnecessary because it is covered by Section 2 of the 1993 Act and that the Immigration Rules may not contain anything contrary to the 1951 convention.
Lord Falconer of Thoroton: My Lords, my position in relation to the question of torture has been clearly set out. I accept in many cases—indeed, it would be the norm—that if there had been torture, it would be very unlikely that the claim could possibly be described as clearly unfounded. I go further—in many cases, the claim would have been made. All I am saying is that there will be cases that appear not to be barred by provision "little c", to which the noble Earl referred, in relation to which there was torture a long time ago and the current position in the country is such that no reasonable person could possibly conclude that it made the applicant's position too distressing to live in that country or that there was no real risk of persecution. If, for example, the applicant had lived for 15 years without any assault on him by the state but he sought to make a claim for asylum or an infringement of human rights, based on torture from a long time ago—that would be an exceptional case—I am not sure whether that would be caught by provision "little c"; nor do I understand the noble Earl to be suggesting that it would.
Earl Russell: My Lords, it is so explicitly asserted by the preparatory works to the convention, which I did not write.
Lord Falconer of Thoroton: My Lords, I am very wary of getting into this because the noble Earl has a much greater memory of the precise words than I have. The test, as I understand it, is that as a result of what happened the trauma of living in the place is unfair on the applicant. What is the position when there was torture some considerable time ago but the person lived perfectly happily in the country because the regime changed and there was no chance of torture? That does not appear to fit into the provision of which the noble Earl gave us an abstract. I say only that this is not an absolute.
Lord Falconer of Thoroton: My Lords, I was not inviting the noble Earl to keep the debate going, unless he is absolutely determined.
Earl Russell: My Lords, the Minister is plainly contradicting the words of the convention and the UNHCR handbook. Incidentally, the provision has a large "C".
Lord Falconer of Thoroton: Sorry, my Lords. I accept that the provision has a large "C".
Perhaps I should clarify what I am saying. If the torture had the relevant impact the noble Earl would of course be right. My only point is that if the torture
is of the sort that I described, it might not have had such an impact, but that would be an exceptional case. I do not wish to be taken to be asserting anything other than that torture would normally give rise to a claim that could not possibly be described as clearly unfounded.I repeat that the Government are fully committed to providing protection for those who would face torture if removed. The amendment is underpinned by intentions that we all share. However, we believe that, in making an inflexible link between past torture and future risk, it goes too far. The ultimate question is whether a claim is or is not clearly unfounded. Evidence of past torture is an important factor in determining that question, but it is not the only or decisive factor in all cases.
For that reason, and in the light of assurances that I have given about our commitment to fair handling of claims involving torture, including the outline of the procedure that I gave in answer to the specific questions raised by the noble Lord, Lord Avebury, I invite the noble and learned Lord to withdraw his amendment.
Lord Archer of Sandwell: My Lords, clearly my noble and learned friend has directed his mind to the concerns expressed in the amendment. I am not sure that the system that he described and the intentions which he seeks to incorporate are beyond improvement. I am tempted to embark on a number of factors which occur to me now. I am not persuaded that it would be wise to formulate them spontaneously, nor perhaps to attempt to negotiate with my noble and learned friend in the course of a public debate.
I was somewhat persuaded by the possibility that there might have been a change of regime a very long time ago and that that is not specifically provided for in the amendment. As ever when he intervenes in a debate, the noble Earl, Lord Russell, totally transformed the ambience in which we are debating. I believe that that will also require a certain amount of concentration.
I should like to reflect further and to consult, in particular, my noble friend who supported me in the amendment, other noble Lords who have participated in the debate, and the non-governmental organisations which, again, have so generously provided us with advice. I give no undertaking that your Lordships will not be invited to consider the matter again. But, for the present, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 43A not moved.]
Clause 94 [Earlier right of appeal]:
Lord Avebury moved Amendment No. 44:
- Page 53, line 39, leave out "the Secretary of State or the immigration officer" and insert "an adjudicator"
The noble Lord said: My Lords, Clause 94 provides that, if at one time a person had a right of appeal and was notified of it but did not exercise it for any reason and he then formulated a new application, the Secretary of State could then certify that, in his
opinion, the person made the new application in order to delay his removal from the United Kingdom and that he had no other legitimate purpose for making the application. If a case is so certified, then the person has no right of appeal. He does not have an opportunity to explain to a competent tribunal why he did not choose to exercise the right of appeal on the earlier occasion.Many of your Lordships will be familiar with cases where a person has changed the basis of his claim halfway through and ultimately has been successful. We say that such people will no longer have a right of appeal because the Home Office is saying, "You had that right on a previous occasion. You chose not to exercise it and we can't see any good reason why you should have an appeal now". That will be that and the person will be subject to removal.
There is nothing on the face of the Bill to prevent the Secretary of State from certifying an application in circumstances where the applicant had a perfectly good reason, which he could have explained, for failing to make use of earlier appeal rights. On the basic principles of fairness, the Immigration Appellate Authority and not the Home Office should decide whether a person has a meritorious appeal against a Home Office decision. I beg to move.
10.30 p.m.
Lord Falconer of Thoroton: My Lords, these amendments result in what we would consider to be a seriously backward step. The one-stop system introduced in 1999 has been a success. It helps IND to consider all aspects of the case more efficiently and gives those with a case the opportunity to put it forward at an early stage and have an earlier decision. It stops those who would put forward late claims to prevent the reasonable implementation of a sound decision.
It stops no one from having the right of appeal if they want it; it stops no one from claiming asylum or putting forward human rights grounds. It stops them from successfully delaying or evading a removal, the reasons for which they have the opportunity to dispute earlier.
Clause 94 simply builds on existing legislation. The 1999 Act introduced the one-stop procedure. The intention is that we deal with all the applicants' points quickly and in one go instead of bit by bit. That is the system set up by the 1999 Act. Some applicants, and nearly all those lodging an in-country appeal, are required by Sections 74 and 75 of the 1999 Act to disclose their full grounds for remaining here. They are given a formal notice which warns them that if they raise a matter later which they would have raised at that point, they may not be able to appeal on that particular matter. Various provisions have that effect.
During the debate in Special Standing Committee in April 1999 there was general agreement that the one-stop procedure was a positive development. However, there were also concerns that judicial reviews would increase. The one-stop procedure works, and the more people get used to it the better it will work. If applicants and their advisers know that they must
disclose everything at an early stage and that spurious late claims will not get them anywhere, the tactics should not be used any more. Ideally, we should never need to certify a late claim because the only late claims we get are due to genuine changes in circumstances, for which the procedure permits. We would be delighted if that were the case.I have taken some time to go back to present legislation so that we can sensibly discuss how we have built on it. Under our proposals applicants may be advised on application or soon after that they must state all the reasons for wishing to stay in the United Kingdom. They will be warned of the consequences if they do not apply. By extending the power to give a warning to all applicants we catch those who do not mention asylum or human rights initially so that we can deal appropriately with a tactical claim later. If the application is refused, with a right of appeal, the disclosure requirement will be repeated when appeal forms are sent out.
We think that it is reasonable, fair and just that, if the opportunity to apply and appeal a refusal has been offered and the applicant chooses not to take it and warnings have also been given, any later application can be certified. That mirrors the effect of Section 76(5) of the 1999 Act in asylum cases but extends it to other types of case dealt with in this country.
It will also bring into the system those who are liable to an adverse decision, such as deportation or curtailment of leave, without having made an application. Issue of the one-stop warning will become discretionary so that the system better targets those cases where it is likely to be of benefit. We do not intend to impose a requirement on every short-term visitor to our shores, for example. At the same time we have simplified how the one-stop system works in practice. That has been welcomed, for example by the Refugee Legal Centre, whose briefing speaks of our simpler and more effective scheme.
Opposition Amendments Nos. 44 to 47 will take away the element which makes one-stop work; that is, the fact that a late application intended to delay by virtue of an appeal no longer has that effect. Having to put the case before an adjudicator would almost inevitably mean that the removal arrangements would have to be cancelled.
Every person whose case is certified will have had the opportunity to make an asylum or human rights case to the Home Office in the proper manner. If they have done, and it has been refused, they will have had the opportunity to appeal. They can apply for judicial review of any one-stop certificate issued in their case and of the decision to refuse the claim, so they are not without recourse.
The general principle that the certificate should deny access to the adjudicator has been with us now for nearly two years. However, no one who has been certified can say that they were not required, often twice over, to make their claim at the appropriate time.
The Joint Committee on Human Rights reminded us of the need to ensure that people are not removed before they have had an effective opportunity to ask for a court's help in enforcing convention rights. The one-stop warning given under Clause 103 requires the person to put forward any convention issues he may have so that any refusal can go through the full appeal process, not just the higher courts.
It is up to claimants to take that effective opportunity when it is offered by complying with the requirement. If they do not and the case is certified they will still have access to judicial review. So, overall, it is a fair system.
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