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Lord Hylton: I am quite certain that none of your Lordships wants to encourage, or in any way approve of, people who deliberately conceal information, mislead, obstruct or delay proceedings in the consideration of their cases. Nevertheless, given the difficulties and obstacles in the way of asylum seekers or refugees reaching this country, it seems that Clause 7 is draconian, to say the least. Has the Home Office fully taken into account the kinds of states of mind and body that people experience on arrival, as was well pointed out by the noble Earl, Lord Russell? Has it taken into account the ignorance of our laws and regulations of the great majority of asylum seekers who very often have to present themselves at the crucial main interview without legal advice and without having had any legal guidance, even on how to fill in their forms? I know that the Minister has helpfully given us some explanations about what constitutes a reasonable explanation and what constitutes telling the truth to a court but if the factors
that I have already mentioned could be taken into account more at the early stages a lot of cases would never have to get to court.
Baroness Scotland of Asthal: I wish to deal first with the point made by the noble Earl, Lord Russell. The Committee will know that we and our European partners have been working very hard to try to get a better understanding of the global nature of asylum and migration and to try to get a joint response on how we deal with it. The Committee will remember that a year or so ago Britain put forward a paper, which was favourably considered by the UNHCR, in terms of how this issue could be addressed. We have not resiled from any of those issues.
The noble Earl will know that we have done a great deal of work through DfID and our other agencies better to support in-country measures to reduce the need for people to fly from oppression and harm in countries where that has prevailed in the past.
I say to the noble Lord, Lord Hylton, that there is an understanding within the Home Office of the need to address the ways in which an applicant may tell his or her story. That is why in this legislation there is proper provision for reasonable excuse and explanation. When over a period of time people are sometimes able to give a full account of their story, reasonable excuse and explanation can be properly taken into account by adjudicators and decision makers. Indeed, there is growing expertise and understanding within the body of adjudicators and decision makers in the Home Office and IND who determine these matters. I do not for a moment suggest that it is by any means perfect, but we have a system which we believe is properly balanced to try to ascertain the truth. We shall, of course, continue to do all that we can to hone that system so that it better meets the needs of the people who we are trying to serve.
Lord Avebury: I wish to take up the point that the noble Baroness has just made about reasonable explanation. I remind her that I asked her whether she thought that if someone had the reasons that have been cited for refusing to answer the question—that is, they had suffered rape or torture—it would be equally difficult for them to explain why they had refused to answer the question.
I shall try to help the noble Baroness on this matter as I can see that the Government have every inclination to try to do the best they can for people who have suffered that kind of experience. If an interviewing officer believes that the person's refusal to answer the question may be the result of trauma that they have suffered due to rape or torture, why cannot the guidance to immigration officers provide that they should call in the Medical Foundation? That would seem to be a very reasonable thing to do. That would immediately refer the applicant to someone who could give the sympathetic consideration and confidential approach that such an experience would demand.
I hope that the noble Baroness will take that point on board. I am not suggesting that she should give me an answer immediately. In any case I imagine that
there would be guidance on how immigration officers are to interpret the words "reasonable explanation" or "reasonable excuse". I should be quite satisfied for the noble Baroness to return to that point on another occasion.With regard to the safe third country, I point out that in Schedule 3, paragraph 20(1), the Secretary of State has the power to add to the list of safe third countries. Although the schedule concerns only countries that belong to the European Union to which, as the noble Baroness suggested, a person could be sent back under the Dublin II Convention, at any moment in the future—we are used to this by now—other countries will be added to the list and orders will be presented which will be very difficult for your Lordships to do anything about. We cannot amend orders, and when, in the past, countries have been added to lists, that has normally gone through on the nod. There are plenty of other countries which are not members of the European Union and which we would not be so happy about treating in this way. However, the same could apply even to countries of the European Union. Earlier, we heard a story from my noble friend Lord Russell about Slovenia. It may not be safe to send back everyone who comes through Slovenia and, if a person were of Serbian origin, it might be very dangerous if that were to happen.
The Home Office's attitude to credibility worries me. My noble friend Lord Russell told a number of stories which illustrated the approach of some—not all—immigration officers to questions of credibility. We could add to those. However, it is not only immigration officers; the same can be said of adjudicators.
Recently I heard about a case involving someone who came from the Cote d'Ivoire. She told a story about her family and its involvement in an attempted coup, which resulted in a close member of the family being assassinated when he accompanied the former head of state, General Guei. The adjudicator said that he did not believe the story and was not even sure that a person such as the uncle, whose name was Fabien Coulibaly, even existed. However, it was subsequently shown to the satisfaction of all concerned that that person had indeed existed, that he had been assassinated at the same time as General Guei and that the applicant was closely related to him. It was not only the immigration officer who treated the story as being incredible; when the person concerned appealed to the adjudicator, the finding was upheld. I believe that any steps which add to the powers of the immigration officers or the determining authorities to treat statements as basically unacceptable should be viewed with great caution.
However, I was relieved to hear the noble Baroness say that the weight to be attached to this clause could be variable. She said that they were just facts which had to be taken into account and that there was by no means a straitjacket. From that, I take it that if the determining authorities, having considered the matter of credibility, thought that they should not attach any weight to the facts, they would have the discretion to do that. I hope that that is correct and I hope, in
particular, that the adjudicators will have the power to disregard the clause entirely, as the noble Baroness suggested—9.15 p.m.
Baroness Scotland of Asthal: If someone were to disregard the clause, one would expect that he would have to say why. He could not simply disregard it. He would have to give the evidence which he took into account and which caused him to believe that the weight to be given to this inference was not such as to cause him to disbelieve or disregard the applicant and that there were other cogent reasons which caused him to come to that decision. I hope that the noble Lord will not misunderstand if I say that it would be wrong and improper simply to disregard these inferences without justifying the basis upon which that disregard was founded.
Lord Avebury: I am grateful for that clarification. However, if the adjudicator or immigration tribunal in the future decided that the behaviour of the applicant in a particular case was not such as to damage his credibility on something completely different—this is where I consider the whole clause to be illogical—he would be able to disregard the injunction in Clause 1 and say that it did damage the applicant's credibility on those other, completely unrelated matters. At any rate, as the noble Baroness said, he would still have had to comply with the ECHR and the Refugee Convention. That in itself might be enough to cause him to disregard or play down almost to vanishing point the provisions of this clause.
It is fundamentally unsatisfactory for this Parliament to fetter the discretion of judicial authorities. That is what we are doing here, because the deciding authorities are not confined to the immigration officers but to the appellate authorities to which that person ultimately will have to go if he is to make out his case. We are not going to make further progress tonight. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
Clause 8 [Failed asylum seekers: withdrawal of support]:
Lord Avebury moved Amendment No. 22:
- Page 10, line 25, at end insert—
The noble Lord said: Clause 8 extends the provisions in Section 54 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 to create a fifth class of person, a failed asylum seeker with family, who will cease to be eligible for any form of support except under Section 20 of the Children Act 1989, which means separating them from their parents.
At present, a person whose asylum claim has been rejected may continue to claim support if he or she has a dependent child as a member of his or her household but this clause inserts a new paragraph 7A in Schedule 3 to the 2002 Act allowing the Secretary of State to certify that, in his opinion, such a person has failed to take steps to leave the UK or to put himself in a position where he would be able to leave the UK voluntarily.
Fourteen days after the person has received a copy of that certificate, he would become ineligible for accommodation and welfare support from the local authority under Sections 21 and 29 of the National Assistance Act 1948; support for the elderly under Section 45 of the Health Services and Public Health Act 1968; support from Social Services under the Children Act 1989 and the Children (Scotland) Act 1995; accommodation under the homeless persons legislation; promotion of well-being under Section 2 of the Local Government Act 2000 and support from NASS under the Acts of 2002 and 1999. In short, he will receive no support whatever from public funds.
As the Committee will know, the JCHR examined whether the proposals were compatible with Article 3 of ECHR, which deals with inhuman and degrading treatment; Article 8 on family life; and Article 3.1 of the Convention on the Rights of the Child, which requires us to consider the best interests of the child. The committee heard the Government's argument that the objective was to ensure that families returned in a dignified way; that they should not continue to live at public expense when they were able to return freely; that providing support indefinitely provided an incentive for them to remain; and that there was a power in paragraph 3 of Schedule 3 to the 1999 Act, which applied also to people caught by this clause, for those providing support to continue to do so to the extent that would be necessary to ensure that a breach of the person's convention rights would be avoided.
The JCHR pointed out that in English law the courts had held that establishing a regime in which support could be withdrawn from an asylum seeker leading to his destitution could subject a person to inhuman and degrading treatment, and the Secretary of State had a duty under Section 6 of the Human Rights Act not to withdraw support, if doing so would leave the asylum seeker in a state verging on the degree of severity that would engage Article 3. The committee said that that duty was not a mere formality; it requires the most serious consideration in every individual case.
With regard to respect for private and family life, the JCHR said that in view of the fact that the Government were unable to give any estimate of the numbers, it was impossible to say whether the overall impact of the measure on children and their families was proportionate to the legitimate aim. However, the committee pointed out that the absence of a procedure for deciding whether to exercise the Schedule 3 discretion not to remove support in individual cases was certain to lead to trouble. In relation to Section 55 of the Nationality, Immigration and Asylum Act 2002,
The JCHR went on to say that procedural safeguards, and their absence, were relevant factors in deciding whether interference with a convention right was proportionate. It was not clear that the assurance given to the Home Affairs Committee—that the guidance would ensure that support would not be withdrawn without clear evidence and an attempt to interview the families—sufficiently met this objective. What can be predicted with some confidence is that this clause is likely to trigger a flood of litigation, as Section 55 of the 1999 Act did, in removing support from those who fail to lodge a claim for asylum as soon as possible after entry into the UK. According to Mr Justice Maurice Kay, those were coming in at the rate of 60 a week, and were having a significant impact on the ability of the court to carry out their duties. The Refugee Children's Consortium say that the JCHR could not very well have said that Clause 8 breaches the ECHR outright, because of the safeguards in Schedule 3. But they considered that, in practice, there would inevitably be some breaches, with children at risk or separated from their families while the court case is pending. It also suggested that we are placing an impossible burden on individual social workers, who have to determine whether, and at precisely what point, the Article 3 threshold is reached.
With regard to the Convention on the Rights of the Child, we believe that the clause breaches Article 3, providing that the best interest of the child shall be a primary consideration in all actions concerning children. The Government say is it not in the best interests of a child to prolong her stay indefinitely in a country where she has no prospect of being able to stay permanently. But the assumption that destitution and coercion is the only alternative to indefinite stay ignores the possibility of a better means of achieving voluntary departure than the Government's existing powers of compulsory removal.
Article 9 of the Convention on the Rights of the Child provides that children should not be separated from their parents unless it is necessary for their best interests, and that all procedures for separating children from their parents must be fair. This is not discussed in the JCHR report, but it is part of the UK's international obligations. No doubt the Minister will say that this can be dealt with in the guidance. But here again, it is placing duties on comparatively junior staff and local authorities which they are not equipped to handle. The Government were not able to explain in another place how social workers would be able to operate Clause 8, and in particular how they would reconcile the duty to safeguard and promote the welfare of children in the 1989 Act—and the professional ethics requiring them first to look to the relief of destitution—with the requirements of this clause. I beg to move.
"(6) Nothing in this section shall be taken as requiring a person to act in contravention of an obligation imposed by virtue of the Children Act 1989 (c. 33), the Children (Scotland) Act 1995 (c. 36), the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) or the Children Act 2004."
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