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Lord Clinton-Davis: My Lords, I am much obliged. It is astonishing to say that to extend the time limit from five to 10 working days is extreme. I do not believe that. What I said at the beginning is wholly true. I want to make these considerations workable and practical. Nothing that my noble friend has said draws me to an opposite conclusion.

Lord Filkin: My Lords, I have no doubt that that is the thrust of my noble friend's intention on this measure, as it has been on many asylum and immigration matters. I am saddened that I have not managed to persuade him at this point.

Perhaps I may turn to a number of points that were raised in discussion. The noble Lord, Lord Goodhart, raised the important issue of deemed service. The five days starts two days after the issue of the notice of decision from the AIT. Therefore, for very good reasons, it is effective not from the date of being sent out but from two days after that date. The last day of deemed service would not overlap with the first day of the five-day application period. We will ensure that that is done and set out in the rules.

The noble Lord, Lord Avebury, also referred to the UNHCR disapproving of the five-day limit. The UNHCR comment relating to a five-day limit refers to filing an asylum claim. We are not referring to that in these measures, but to a subsequent time limit for seeking a review and reconsideration.
7 Jun 2004 : Column 22

We do not wish to ignore the representations of the House, but we have given the issue very careful consideration. In the vast majority of cases, an asylum applicant will have had a lawyer at the original asylum and immigration tribunal hearing. In many cases, during the hearing, the points of law on which it seems likely that the tribunal's determination will turn and hinge will be identified, so the lawyer and the applicant will not come cold to the thrust of the likely decision by the tribunal. Therefore, in most cases, a lawyer and his client would have been in a position to have discussed whether, if the hearing did go against them, they would wish to lodge an appeal. Often, the lawyer would be well prepared about what should be the thrust of the case that he or she would put before the High Court when seeking an ex parte application.

Therefore, for those reasons, we think that five days is workable. However, that should be cautioned, of course, by the fact that there is a discretion for the High Court judge to waive that when he or she thinks that the interests of justice require it.

Lord Avebury: My Lords, I am most grateful to the noble Lord. My quotation from the UNHCR was not direct, but it came from paragraph 1.81 of the 6th report of the JCHR. That was in the context of the shortness of the time limit for applying to the High Court for a reconsideration. It was not in terms of the first application at all. If the noble Lord refers to the JCHR report, he will find that my quotation was relevant to this discussion.

Lord Filkin: My Lords, I thank the noble Lord, Lord Avebury, for his correction.

Lord Goodhart: My Lords, the Government have said that their objective is to have a procedure that is swift but fair. We agree with that objective. Unfortunately, the Government's proposals, while plainly swift in this respect, are blatantly unfair. The Government say that they are confident that an appellant will have sufficient time because—so they say—the grounds for appeal will already have been covered in the argument at the first hearing before the asylum and immigration tribunal.

The idea that the judgment of the tribunal is so predicable that, in effect, it is possible to draft a notice of appeal in advance is utterly unrealistic, as, I believe, anyone who has practised in the courts will agree. Many speakers in this debate have said that a five-day period is utterly impracticable. The five days' limit will be only a very minor factor in extending the time before the removal ultimately of an unsuccessful asylum seeker. The five days' limit will be a major factor in creating unfairness in the system.

I am most grateful for all the support that this amendment has received from all parts of your Lordships' House. The amendment echoes the views of the highly respected Joint Committee on Human Rights. In those circumstances, it is proper for me to seek the opinion of the House.
7 Jun 2004 : Column 23

3.50 p.m.

On Question, Whether the said amendment (No. 43) shall be agreed to?

Their Lordships divided: Contents, 143; Not-Contents, 94.

Division No. 1


Ackner, L.
Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Bledisloe, V.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chadlington, L.
Chester, Bp.
Colwyn, L.
Cope of Berkeley, L.
Craig of Radley, L.
Crickhowell, L.
Cumberlege, B.
Darcy de Knayth, B.
Deedes, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Ezra, L.
Falkland, V.
Feldman, L.
Freeman, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Peckham, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Laming, L.
Lamont of Lerwick, L.
Listowel, E.
Lloyd of Berwick, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Methuen, L.
Miller of Hendon, B.
Monro of Langholm, L.
Montrose, D.
Murton of Lindisfarne, L.
Newcastle, Bp.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
Northover, B.
Oppenheim-Barnes, B.
Oxford, Bp.
Park of Monmouth, B.
Peel, E.
Perry of Southwark, B.
Plant of Highfield, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Prior, L.
Rawlings, B.
Rawlinson of Ewell, L.
Razzall, L.
Reay, L.
Redesdale, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roll of Ipsden, L.
Roper, L. [Teller]
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Skelmersdale, L.
Skidelsky, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stern, B.
Strathclyde, L.
Swinfen, L.
Tanlaw, L.
Taverne, L.
Tebbit, L.
Tenby, V.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Trenchard, V.
Trumpington, B.
Tugendhat, L.
Waddington, L.
Wakeham, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Watson of Richmond, L.
Weatherill, L.
Williams of Crosby, B.
Windlesham, L


Ahmed, L.
Alli, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Filkin, L.
Fyfe of Fairfield, L.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jeger, B.
Jones, L.
Jordan, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Patel of Blackburn, L.
Pitkeathley, B.
Richard, L.
Rogan, L.
Rooker, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Smith of Gilmorehill, B.
Stallard, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Tomlinson, L.
Triesman, L.
Turner of Camden, B.
Varley, L.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

7 Jun 2004 : Column 24

Lord Goodhart moved Amendment No. 44:

On Question, amendment agreed to.
7 Jun 2004 : Column 25

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