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Asylum and Immigration (Treatment of Claimants, etc.) Bill

9.11 p.m.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

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On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.]

The Earl of Sandwich moved Amendment No. 24:


    After Clause 8, insert the following new clause—


"REPEAL OF SECTION 55 OF THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002
Section 55 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (late claim for asylum: refusal of support) shall cease to have effect."

The noble Earl said: In moving Amendment No. 24, I shall speak also to Amendment No. 41, which would amend Schedule 4. Section 55 of the Nationality, Immigration and Asylum Act 2002 was in my view a mistaken and last-ditch attempt to reduce the number of asylum seekers in this country. It was introduced during the very final stages of the NIA Bill's passage through Parliament in the autumn of 2002, giving both Houses only very limited opportunity to consider its potentially devastating consequences.

The amendment to repeal Section 55 was tabled in another place by Neil Gerrard. It was grouped, but because of the guillotine it was never debated, which is another example of this House picking up the pieces—in this case an argument which already had considerable support among MPs. Incidentally, the original government amendment to introduce Section 55 was given only 15 minutes in this House in October 2002 and no time at all in the Commons.

Noble Lords may remember that Section 55 originally denied all National Asylum Support Service (NASS) support to adult asylum seekers who claimed in country and could not show that they claimed as soon as reasonably practicable after arrival.

The Government have since all but admitted that this section is not working, conceding only last December that three days is a reasonable time in which to claim. In other words, the Government have accepted that this section, which so many of us opposed 18 months ago, was always based on the false premise that people—including many genuine claimants who may have suffered trauma, been trafficked or tricked into coming, been given false documents or destroyed documents under duress—should somehow be able to produce all the right papers at the port of arrival or soon afterwards.

Noble Lords who support the amendment are pointing out that most people are in this position when they come here, and that the three-day concession has made very little difference. That is also confirmed by the high rate of success of in-country applications. Many applicants with well founded claims apply after 72 hours.

As the noble Lord, Lord Avebury, said in a previous sitting, the High Court is now flooded with cases, with solicitors turning away more than they can take on. In-country applications, meanwhile, are still at a very high level. Four out of 5—81 per cent—of asylum seekers on whom the Home Secretary made a positive asylum decision in the first three quarters of last year,

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for example, had applied in country. That is three quarters of all applicants. Using 2001 figures, two out of three positive decisions were based on in-country applications. That situation will continue unless Section 55 is removed. The Home Affairs Select Committee this year described it as harsh and called for a review. There is an element of official desperation in that, while most people are refused support in their first week, case workers are even being instructed that someone claiming asylum four days after arrival is a suitable case for refusal. It is obviously absurd to say that asylum claims that have credibility on a given evening somehow lose credibility the following morning.

I shall briefly cite two cases from the Merton Churches' support group. One young woman arrived on the Saturday of a bank holiday weekend. She went to the immigration office in Croydon on the Monday, and it was closed. She went back on the Tuesday and was judged to be a late claimant and refused under Section 55. An elderly Somali woman lost her first appeal on the ground that she did not know where she was or where she had come from. Her second appeal was won for the same reason, because she was obviously suffering from dementia. That surely demonstrates the absurdity of the three-day rule.

Incidentally, it would be helpful to hear from the Minister whether the section was regarded as a deterrent. I understand that the fall in applications last year was not the result of Section 55, but of other factors, such as external border controls and reduced numbers coming from Iraq, which were down by 72 per cent last year. The proportion of asylum applications made in-country has actually increased. Of the total number of UK asylum applications, 65 per cent were made in-country in 2001, and that figure rose to 72 per cent in 2003.

The humanitarian consequences of all that are most obvious to local authorities, non-governmental organisations and churches, all of whom have to take responsibility for any failures of legislation. The Mayor of London's office, which is very concerned about the matter, has published its own report, Destitution By Design, expressing concern about the number of adults made destitute by the section, which came close to 10,000 last year, or 200 people a week.

Research for the Greater London Assembly showed that, despite the efforts of local communities, 29 per cent of people denied support under Section 55 in London last November had to sleep rough. That implied a rise of more than half on the previous recorded tally of people rough sleeping in London. As many as 50 per cent of those destitute under Section 55 are women, which is a much higher proportion than of asylum seekers as a whole. I declare an interest as a board member of Christian Aid. Thanks to the Churches' Commission for Racial Justice, I have read case studies from the Merton Churches' support group and the Eritrean group at the Crossroads Women's Centre. There are also examples from Oakington. Those show how many church and community groups, mainly in London but also elsewhere, are trying to cope with increased numbers. People who have

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undoubtedly escaped persecution and destitution in their own country are simply being turned out on to the streets. The Catholic bishops have called for repeal of the section. Their statement reads:


    "seeking asylum is a fundamental human right, guaranteed in international law. It is therefore incumbent on the Government to make certain that no-one is left destitute, homeless or detained arbitrarily at any point during the process of an asylum application".

One worrying consequence of Section 55 has been the suspicion that some established voluntary agencies that are trying to administer NASS support under this section are seen by asylum support groups as agents of policy as well as service-providers. That could easily undermine the mutual trust that has always existed at local level. I know that the Government are under pressure to get results. We have all heard about the Daily Mail poll that shows how public confidence has fallen. But I hope and expect that I have said enough to convince noble Lords that Section 55 was a mistake and that, although we may well need to discuss the cut-off point following earlier amendments, the Government must now move to repeal it. At the very least, they should organise an independent review. I beg to move.

9.15 p.m.

Earl Russell: My Lords, I thank the noble Earl, Lord Sandwich, for the clarity with which he has introduced the amendment. He has dealt with all the nuts and bolts with admirable precision. I want to try to look at it in a slightly wider context. It seems that there are four possible grounds on which the amendment could be held to be valid. I need to prove only one of them to satisfy the Committee; in fact, I think that there is force in all four of them.

First, it could be argued that it is always wrong to reduce people to a level of destitution; that it is a basic principle that people have a right to life; and that the state is there to protect them and to help to ensure that right to life. The Minister will talk about rights and responsibilities, but when you link rights and responsibilities, the biggest responsibility of all is that of the Government to protect the lives of those temporarily or permanently under their protection. That is, in the 17th century phrase, the keystone which closes up the arch of government. Take that away and all the rest collapses.

Prima facie, having no visible means of support is below subsistence level. But, as my late colleague Professor Jack Fisher used to say, if you are below subsistence level you are dead. That creates a rebuttable presumption that some of those who have been so disentitled but have stayed alive have done so by illicit means. The maxim,


    "lead us not into temptation",

has more force than it is sometimes given. It is to lead people into temptation to give them no visible means of support whatever.

Saint Thomas Aquinas maintained that it was not a sin for the destitute to steal from the rich to support themselves. I have never been certain that I have agreed all the way with Saint Thomas. I would prefer

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to say that it was a sin that I would always be inclined to look on with mercy. But it is certainly a temptation that is created. So it contributes more—and, God knows, we do not need this—to the fear and hatred of asylum seekers, which was demonstrated last week in Portishead, where there was an attempt to open an office for interviewing asylum applicants. All the residents of Portishead have created such an outcry against that—polluting the town with these evil people—that the only one who spoke up for them at a town meeting was in real danger. That is not clever.

I once said that the case for not disentitling people to benefit was as strong in terms of fear created among the rich as of want created among the poor, because when the rich get fear they tend to get fierce. I had quite forgotten that I had said that. I was reminded of it by the noble Baroness, Lady Kennedy of The Shaws, whose newly published book, Just Law, is well worth studying.

It may be argued that even if it is right to deprive people of benefit, it is wrong to do it to asylum seekers because they are too vulnerable. There is a sort of unofficial guidebook—a sort of Down and Out in Paris and London as it were—which English people on the streets pick up from each other very quickly indeed. Having had a pupil who was homeless on the streets for six years, I have heard a lot about this. He was a paranoid schizophrenic who decided not to take his medicine. English people on the streets know which restaurants put out food, at which times; they know the culture; they can talk to people and we do not allow the force of this. During the policy of dispersal, that ill-fated policy, there was once a Malay who was sent to Brighton where not a single person in the whole town spoke his language. Arguably, it is a more severe penalty when inflicted in these circumstances than when it is inflicted on people who are in surroundings that they know.

There is also a remarkable failure of due process in the working of this clause. The noble Earl, Lord Sandwich, quoted cases of the next working day. In Mr Justice Maurice Kay's judgment, there is a case of someone who applied for asylum later the same day on which he landed, which was held to be an unreasonably delay. Attention has rightly been drawn to the fact that the proportion of in-country applicants has gone up. I have never been able to understand how the Home Office believes that it is possible to deter people from applying in a particular way by changing British benefit regulations. I simply do not see how such regulations are brought to the attention of the people who are supposed to be subject to them. This is not a rhetorical question: were these changes promulgated on the streets of Harare, or Freetown, or Kabul? Are the presses of those countries so free that you can report, in detail and accurately, under what terms you can get asylum in the United Kingdom? I would be surprised if that were the case, but I cannot see how these things can have a deterrent effect if they cannot be made known to those who are supposed to be deterred.

It is about time that the Home Office gave an answer to that question. Certainly, the system is not working. It is having the reverse effect from the one intended.

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Also, it assumes that applicants in-country are likely to be less genuine than those who apply at the ports. That contradicts the Government's own figures, which show that two-thirds of successful applications are made in-country. As one of my pupils said to me when he found a contradiction in my index, "Where are you right?". The Government must be wrong in one or other of these things.

It is likely contrary to the European Convention on Human Rights. I had a communication this morning from Fisher Meredith, the firm for which my daughter-in-law works—I declare an interest. I do not have the details, because I mistakenly thought that this was coming up tomorrow. It confirms what Mr Justice Maurice Kay has said, that the volume of cases under ECHR on this subject is in danger of clogging up the courts because they have nowhere else to go. He also confirmed my impression that the interpretation of the words, "inhuman or degrading treatment" in Article 3 of the Convention is at present hanging in the balance and that a judicial consensus has not yet emerged as to how those words are to be interpreted.

We also agreed that the more cases of the sort precipitated by this clause that come to the courts, the more likely the judges are to reach the conclusion that disentitlement to benefit is always inhuman and degrading treatment. At present, the threshold is referred to as "destitution plus". No one understands exactly what is meant by the "plus", but it could be held that the particular circumstances of being an asylum seeker, on which I was speaking a moment ago, constitute that plus. That is a risk that the Government should not take lightly.

Were the Government or the ECHR judges to decide, either in Strasbourg or in this country, that all disentitlement to benefit was in breach of Article 3, that would cause a confusion in Government social security policy which, if I were the Minister, I would not approach with equanimity. It would be a good example of the regular political rule that when one gets very frightened of something one produces rather than prevents the effect that one fears. The Government really ought to think again, or they will find that it is too late.

9.30 p.m.

Lord Hylton: This discussion appears to raise important questions of procedure. First, why are we being asked to consider four amendments and one clause stand part debate in isolation from the rest of Committee stage of the Bill? Secondly, why have the Government brought this little piece of Committee stage before us at a very late hour, well after any conceivable dinner time, following two other complex and controversial Government Bills? It seems to be unusual, unprecedented and very undesirable.

Turning now to the amendment, I am very happy to support my noble friend Lord Sandwich. I think that he moved the amendment in a most comprehensive, logical and moving way. I hope that the Government are therefore in listening mode tonight, particularly regarding an amendment designed to prevent

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destitution. The Government may fancy that they have saved themselves some trouble of an embarrassing kind by the way in which they have treated the House. But I think that it is not out of order to suggest that they will be storing up trouble for themselves during the later stages of the Bill. Have they perhaps considered the prospect of sitting on every Friday between now and July?

Home Office statistics apparently admit that there are already 7,500 people destitute because of the legislation that we are considering. Reference has already been made to the burden that this causes for Church groups. I hope that the right reverend Prelate, who is in his place, will be able to add to that and to give more details. It is certainly causing problems, acute worries and anxieties for the members of refugee and exile communities already in this country who are bound to feel moved by compassion for their fellow countrymen who find themselves in such difficult circumstances. It is also causing major problems for a whole range of charities that are confronted with people in a destitute state and feel that they cannot and should not just walk by on the other side.

As to public policy, it seems that the present state of the law is likely to cause people to take to begging as the only way of keeping themselves alive and, possibly, to resort to quite aggressive begging, which many will find offensive in itself. It is also bound to be a strong incentive to those affected to find whatever employment they can at whatever wage rate in the black economy. Surely that runs totally contrary to the Government's minimum wage policy.

On all those grounds I am happy to support the amendment and I wish it very well.


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