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Lord Lester of Herne Hill: My Lords, the Minister has just given an important reply, which I am sure will be considered. I wish to make it clear beyond doubt that the Government are saying that there is an absolute duty under the European convention, even to a failed asylum seeker who has not been co-operating and who has no reasonable excuse for being here. It is an absolute duty as part of the state's positive duty not to withdraw support if to do so would expose that person or his family to inhuman or degrading treatment. In other words, that is expressly said in Clause 8 or the schedule. Is that the Government's position?
Lord Elton: My Lords, while the Minister is thinking about that, could he also help me with a small point? Earlier on he saidand invited us to weigh this in our decisionthat NASS said that it would not withhold support under certain circumstances. However, as I read it, paragraph 1 is triggered by circumstances, not by a decision of NASS. Does that mean that the Secretary of State will be advised not to issue a certificate under new paragraph 7A (1)(b) of Clause 8? Otherwise, how does NASS have the right to continue support when the person is disqualified?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Lester, for his question, to which the Box is giving careful consideration. I can confirm that the situation described by the noble Lord to your Lordships' House is government policy.
Other points were made by the noble Earl, Lord Listowel, with which I have dealt. However, it is important that parents of failed asylum seekers accept their responsibilities. They do not have a right to remain here. At that late stage, their applications have failed and they should properly consider their positions. We do not want to give false hope or encouragement to families. They need to act responsibly. It is in parents' interests and those of their children that they do so. We are trying to encourage
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voluntary departure. The noble Earl asked how many families would be affected. I cannot give a precise estimate, because it depends very much on the individual actions of those involved. However, I cannot believe that we are anticipating large numbers. Obviously, a degree of co-operation will minimise the numbers involved.
If there is co-operation, the situation is much relieved and it is much easier for us to assist. If families do co-operate, they will receive support. If they do not co-operate, documents cannot be obtained, which makes it extremely hard for us to act effectively and much easier for them to stay here in breach of what has been a thorough process of determining their eligibility for asylum status.
The noble Lord, Lord Elton, asked about the triggering of paragraph 1. He is right to say that a person is renderedI am finding this brief hard to readineligible for support. Prior to that happening, the Secretary of State has to make his certification. In that respect, the new class operates slightly differently to existing classes. I hope that that clarifies the point. If it does not, I shall reflect further on the noble Lord's question and respond to him by letter.
We believe that we have adopted the right approach. There are adequate safeguards in place and the mix of encouragement and inducement should work to everyone's benefit. We accept that there are hard cases. This is a hard case to resolve. However, we think that we have drawn the position as fairly as we possibly can and that it is in nobody's interests for us to provide inducements to carry on in breach of the quite proper findings of the appeal process. For that reason we have designed the clause in this way. I do not believe that the amendments would best serve those affected and I hope that the noble Lords who tabled them will feel persuaded by what I have said and withdraw their amendments.
Lord Avebury: My Lords, it was useful to have the exchange between my noble friend and the Minister towards the end of the Minister's speech because my noble friend elicited the fact that the Government would never take any steps with regard to this clause that would result in a violation of Article 3 of the ECHR. That leads me to make one point in conclusion. I cannot understand why the Minister resists an amendment that would enable the Government to form a judgment on whether, in the particular circumstances of the individual case, there was a danger that Article 3 would be violated. First, the Minister said that there would be no assessment. Then, in response to the point that I made about the Treasury Solicitor's letter, he said that in those particular circumstances there would be an individual assessment. That is all that we are calling for in Amendment No. 22. We are trying to facilitate the Government in the performance of their duties in ensuring that no breach of Article 3 occurs. This is such an important matter, that I must test the opinion of the House.
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