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Lord Hylton: My Lords, what the noble Lord, Lord Judd, said is very important. I hope that he will get the assurance he seeks from the Government.

In considering this group of amendments, we must remember what happened in 1996 and 1999, when survivors of torture were exempted from accelerated procedures. In that context, I am grateful to the Immigration Law Practitioners' Association, which detailed three cases that had recently been certified as manifestly unfounded. The first involved a man from Zimbabwe who fled after his parents were beaten and stabbed to death. On appeal he was granted full refugee status. The second was that of a Roma woman from the Slovak Republic. Her brother-in-law was murdered by skinheads, her house was burnt down, and she was attacked by skinheads. The adjudicator found that there was a real risk that she would be subjected to torture or inhuman or degrading treatment. In the third case, the father of a man from Cameroon had disappeared, the family home was burnt, and he was arrested and detained for three months, during which time he was systematically tortured. He, too, eventually achieved full refugee status.

I conclude that the Government's amendment is less satisfactory than Amendments Nos. 90 and 91, one of which I hope will be successful.

Lord Joffe: My Lords, I was surprised by the muted response of Ministers on Report to the case studies presented by the noble and learned Lord, Lord Archer of Sandwell, which were similar to those just mentioned by the noble Lord, Lord Hylton. Those case studies showed that Home Office officials have made the most appalling findings in certifying cases as manifestly unfounded when in practice they were manifestly well founded. But for the appeal process to an adjudicator, each of those cases would have resulted in a human tragedy. In view of that, I would have thought that a humane and caring government would have wished to introduce new safeguards to ensure that such potential miscarriages of justice would never occur in the future. Instead, the Government are doing the opposite and making it even more certain that miscarriages of justice will

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occur. The aim of Amendments Nos. 88 to 94 is to prevent such miscarriages of justice and I support them.

Baroness Whitaker: My Lords, as another non-lawyer, I also support Amendments Nos. 89, 90 or 91, because they seem to me to restore the minimum standard of justice to this part of the asylum process.

The Joint Committee on Human Rights, of which I am a member, in its 23rd report, has put clearly the import of Clause 92(2) in the context of the Bill as it now stands. It says:


    "there would now be no right of appeal at all to an adjudicator . . . the removal of any right of appeal results in there being inadequate protection for the human rights of claimants".

That is coolly put, but I would like to add that as an official, and therefore not in a judicial capacity, in the past from time to time I exercised powers delegated to me by the Secretary of State to make determinations within the framework of law which affected, in my case, people's livelihoods. It is from that experience that I conclude that to exercise this kind of power over a matter of fundamental rights like asylum, without any possibility of appeal to a judicial process, is wholly inappropriate for an official, and in fact falls short of our traditions of justice. The amendments put a just process back into the Bill.

The Lord Bishop of Guildford: My Lords, following the remarks of the noble Lord, Lord Judd, I should also like to speak about the issues, as someone else who is not a lawyer, but represents the interests of grace and faith. It is surely manifestly clear from the number of amendments tabled to the clause from all round the House that it is widely perceived to represent an injustice in the Bill. We look to the Minister to give us some encouragement that the Government are going to respond to those concerns widely.

No one can sensibly maintain that asylum seekers will not be seriously disadvantaged by removal of the right to appeal from within the United Kingdom. On the contrary, any out of country system of appeal must be meaningless. It cannot have any substance. How can an asylum seeker make his case to the adjudicator without the opportunity to give oral evidence or necessarily to consult lawyers in this country face to face about his needs? How can an asylum seeker make his case from a country where he fears, or may even already be suffering, persecution?

Noble Lords have spoken eloquently tonight and on other occasions about the distaste that we must feel when the executive determines appeal rights rather than an independent judiciary, whose constitutional role is to scrutinise the decisions of government. Surely the clause is not satisfactory. Whichever route we determine to go down tonight, this House must put down a marker that further work needs to be done on this before Parliament assigns it to the statute book. We on these Benches will support the amendments as they come in the hope that the Government will respond to these widespread concerns about the justice of Clause 92.

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10.15 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, we have spoken many times about these important issues. I shall not rehearse all of the arguments, but seek to summarise the position. I shall speak first to Amendment No. 103 which is the government amendment in this group.

The Government take the view that some asylum and human rights claims are so lacking in substance that they need to be dealt with as quickly as possible and the applicants removed from the United Kingdom as soon as their claim has been identified as clearly without merit. I gave an example of an actual case in which the person based his claim on the fact that his family had told him to apply. Despite the availability of medical and legal assistance, he was not able to elaborate on his application. Such claims should not go through the full process. We consider it fair and sensible to deny an in-country right of appeal in such cases. I have made it clear many times that legal redress before removal is not ruled out. It will remain open to an applicant to seek judicial review if he or she considers that there was a flaw in the decision-making process that led to the certificate being issued.

The noble Lord, Lord Lester of Herne Hill, drew our attention to a recently decided case of the House of Lords to the effect that judicial review provides "an effective remedy" to ensure that the law is upheld in these matters. The noble Lord also drew our attention to the fact that the case dealt specifically with a certificate of a manifestly unfounded claim. Therefore, referring specifically to a similar type of procedure, the House of Lords has concluded that it is an effective remedy. Consequently, the House of Lords sitting in a judicial capacity disagrees with the view held by some noble Lords that there is no effective legal monitoring or control.

We are committed to having in place clear and robust procedures to ensure that the quality of decision-making is high. I fully accept that the consequences of issuing a certificate are significant. We must have in place arrangements that seek to ensure that a claim has been properly considered before the decision to certify is taken.

As I have said before, we are introducing a "two pairs of eyes" system whereby each case is considered by a caseworker and then by a senior caseworker. All those involved in taking a decision on the claim will be specially trained on certification issues. Such training will, of course, be in addition to the extensive training in general asylum matters that all IND caseworkers receive. Cases will be referred where necessary to government lawyers further to ensure the quality of the decisions being taken.

Alongside all these measures we are also establishing, on a statutory basis, an independent panel of experts to comment on the country information produced by the IND. The existing country reports are held in high regard internationally, and I am sure that their status will be further enhanced by the creation of this panel. As accurate, up-to-date country information is a central factor in assessing

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asylum and human rights claims, not least in assessing potentially clearly unfounded claims, the bolstering of our country information reports is further evidence of our focus on quality.

These are all concrete measures designed to show our commitment to a robust and effective decision-making process. As I have already accepted, mistakes might still be made. Judicial review, however, is there as a fall back. My noble friend Lord Judd asked for an assurance that everyone will specifically be told of the right to judicial review. We deal with that as follows. The legal advisers of all those going through this process and taking advantage of the opportunity of legal advice will be aware of judicial review. We think that that provides an adequate safeguard.

Many concerns about this procedure have been expressed throughout the Bill's passage. Bearing all this in mind, we have decided that it would be appropriate to create a new statutory post, that of monitor of the clearly unfounded claims provisions. The monitor would look at the processes being used in such cases. This would include the way such claims were considered by the Immigration and Nationality Directorate, whether at Oakington or elsewhere. The monitor's role would not be to intervene in individual cases—we do not think that that would be appropriate—but to provide external, independent quality assurance on the systems being operated. He or she would be granted necessary access to ensure that that function could be carried out effectively. Fees and allowances would be paid as appropriate. He or she would be required to produce a report to the Secretary of State once a year. The report would be laid before Parliament, thereby providing transparency to the whole process. As noble Lords will be aware, other monitors exist in relation to the 1993 Act to review certain entry clearance decisions that do not attract a right of appeal. I refer also to the race monitor for whom provision was made in the Race Relations (Amendment) Act 2000.

We believe that having an independent monitor for the clearly unfounded, non-suspensive appeal provisions will add value to the process and underline the Government's commitment to quality decision-making. We consider that to be a significant amendment. I hope that noble Lords will treat it as such.

I turn to the other amendments in the group. I shall not deal with Amendments Nos. 89 and 90 as my noble and learned friend Lord Archer of Sandwell indicated that he would not move them. Amendment No. 91, spoken to by the noble Lord, Lord Goodhart, concerns an appeal to the Immigration Appeal Tribunal. I refer to the statutory review procedure in Clause 99 in that regard. If a claim is clearly unfounded and there is a proper judicial safeguard to ensure that the procedure is properly used—we say that there is; namely, judicial review—the noble Lord is simply saying in his amendment that he disagrees with

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the proposition of non-suspensive appeals. The Government take issue with that. That is what the debate is about. We say that there are clearly unfounded claims but that judicial review provides an effective remedy. We say that those clearly unfounded claims should not be allowed to proceed through half the system—as the noble Lord, Lord Goodhart, suggests—or, indeed, through all of it. We believe that we have an appropriate method to deal with the matter.


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