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Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. We are not saying that there are not abusive claims where claimants ought to be returned. However, we are saying that there should be proper consideration of a suggestion that a claim is clearly unfounded before someone is returned to the country from which he or she came. Once that question has been determined, if it is agreed by the body that decides that question that the claim is unfounded, the asylum seeker should be returned. The appeal against the refusal of asylum can continue but on an out-of-country basis.

Lord Falconer of Thoroton: My Lords, accepting the proposition that there are clearly unfounded claims, the issue then simply concerns what is a suitable judicial safeguard. We say that it is judicial review. The noble Lord, Lord Goodhart, says that it is not. I say with the greatest respect that I have the support of the House of Lords sitting judicially who say that it is an effective remedy.

I shall deal with the amendment of my noble friend Lord Clinton-Davis at the end of my remarks. Amendments Nos. 88 and 94 were spoken to by the noble Lord, Lord Kingsland. They provide that a person who had an application certified as clearly unfounded could not be removed from the United Kingdom for a period of 28 days if it was proposed to remove him to a country which had not been certified as being safe. The simple answer to that is that we all recognise that there will be some clearly unfounded claims that involve a person making a claim from a country that is not on any sort of list to which the noble Lord refers. If there are such claims, and if there are sufficient judicial safeguards—I say that there are in the form of judicial review—we cannot see any reason why the provision should not apply to such claims.

As I understand it, the approach of my noble friend Lord Clinton-Davis is that he would prefer to see safeguards but, if they do not exist, he would like to see in place a 12-month sunset clause. We do not consider such a measure to be appropriate. There is no suggestion that in 12 months' time conditions will have changed to such an extent that the willingness of individuals to come to the United Kingdom to make clearly unfounded claims will have disappeared. We regard the powers as being applicable for the foreseeable future.

I turn to the way in which the situation is operating. The independent statutory monitor will report to Parliament and he will be able to inform both the

31 Oct 2002 : Column 395

Secretary of State and Parliament on an independent basis of what is going on. That can obviously inform future decisions.

We have listened carefully to what has been said and we have proposed the independent monitor. In light of that, I invite noble Lords to agree to the provisions and to take note of what the monitor says when he makes his reports to Parliament.

Lord Kingsland: My Lords, we on these Benches have tried very hard in negotiations with the Government to find a form of words to achieve the objective that we seek. The noble and learned Lord made it absolutely clear that, although he is sympathetic to our concerns, he is not able to place in the Bill the guarantee that we seek.

We have not asked the Government to travel a long way; we simply want a guarantee in the Bill that those persons who would otherwise be removed to uncertified countries will have clear protection. The Government are not prepared to do that, and I therefore wish to test the opinion of the House.

10.26 p.m.

On Question, Whether the said amendment (No. 88) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 70.

Division No. 6

CONTENTS

Addington, L.
Anelay of St Johns, B.
Attlee, E. [Teller]
Avebury, L.
Barker, B.
Blackwell, L.
Blatch, B.
Bridgeman, V. [Teller]
Brooke of Sutton Mandeville, L.
Burnham, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Clement-Jones, L.
Darcy de Knayth, B.
Dholakia, L.
Fearn, L.
Goodhart, L.
Greaves, L.
Guildford, Bp.
Hamwee, B.
Hooson, L.
Howe, E.
Hylton, L.
Joffe, L.
Kingsland, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mayhew of Twysden, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Portsmouth, Bp.
Redesdale, L.
Rennard, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.

NOT-CONTENTS

Acton, L.
Amos, B.
Andrews, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Milner of Leeds, L.
Mitchell, L.
Morgan of Huyton, B.
Morris of Manchester, L.
Pendry, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Warwick of Undercliffe, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

31 Oct 2002 : Column 396

10.36 p.m.

[Amendments 89 and 90 not moved].

Lord Goodhart moved Amendment No. 91:


    Page 52, line 29, at end insert—


"(2A) If the Secretary of State certifies under subsection (2) that a claim is clearly unfounded, the person who made the claim may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the certificate.
(2B) A party to an appeal to the Tribunal under subsection (2A) may apply to the High Court, or in Scotland to the Court of Session, for a review of the Tribunal's decision on the ground that the Tribunal made an error of law.
(2C) Where an application is made under subsection (2B)—
(a) it shall be determined by a single judge by reference only to written submissions,
(b) the judge may affirm or reverse the Tribunal's decision, and
(c) the judge's decision shall be final."

The noble Lord said: My Lords, our amendment is significantly different. We regard it as extremely important. Although the hour is late I wish to press it. I beg to move.

31 Oct 2002 : Column 397

10.37 p.m.

On Question, Whether the said amendment (No. 91) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 71.

Division No. 7

CONTENTS

Addington, L. [Teller]
Archer of Sandwell, L.
Avebury, L.
Barker, B.
Blackwell, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Clement-Jones, L.
Clinton-Davis, L.
Darcy de Knayth, B.
Dholakia, L.
Fearn, L.
Goodhart, L. [Teller]
Greaves, L.
Guildford, Bp.
Hamwee, B.
Hylton, L.
Joffe, L.
Judd, L.
Listowel, E.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mayhew of Twysden, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Portsmouth, Bp.
Redesdale, L.
Rennard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Wallace of Saltaire, L.
Walmsley, B.
Whitaker, B.
Williams of Crosby, B.

NOT-CONTENTS

Acton, L.
Amos, B.
Andrews, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Milner of Leeds, L.
Mitchell, L.
Morgan of Huyton, B.
Morris of Manchester, L.
Pendry, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Warwick of Undercliffe, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

31 Oct 2002 : Column 398

[Amendments Nos. 92 to 94 not moved.]

Clause 94 [Earlier right of appeal]:


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