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Meanwhile, tens of thousands of exiles here have reached the end of the line with their asylum claims and although they are likely to be the most active and intelligent among the population of Zimbabwe, they can do nothing to develop their skills in this country so that, when Mugabe is finally toppled, they can make a full contribution towards the rebuilding of their own country.

The best way that the UK can prepare to help them when that day comes is by encouraging the exiles to work now and, wherever possible, to upgrade their qualifications. That was the view of the JCHR and, indeed, it went further. It stated in its report on the treatment of asylum seekers:

The committee went on to recommend that asylum seekers should be allowed to apply for permission to work when their asylum appeal has been outstanding for 12 months or more and the delay is due to factors outside their control.

We propose that where there is evidence that an asylum seeker will not be able to leave the UK for 12 months or more, he or she should be granted limited leave to remain for 12 months, with a permission to work attached to it. We strongly endorse that JCHR recommendation and put it forward as a useful proposition for us to adopt in the amendment.

According to a Home Office estimate of July 2006, there were then some 450,000 legacy cases; that is, cases where claims for asylum or leave to remain had been made but not determined and where they were not being dealt with under the new asylum model. Those cases were dumped into a newly formed legacy directorate with 1,000 staff who were to prioritise them and, where the claimants were selected, write to them sending a questionnaire so that the files could be updated and sent to a caseworker. All the cases were to be disposed of by 2011, five years from the date of the Home Secretary’s original announcement. If every one of those disposals resulted in voluntary or compulsory departure immediately the decision was made, if the decisions were made evenly throughout the five years and we assumed that only half the legacy cases were able to work, barring those people from jobs will, by 2011, have lost the economy 2.5 times 225,000 person-years of work. If one values each person-year of work at the modest figure of £10,000, the total loss to the economy of preventing these people from working will amount to £5.6 billion.

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I invite the Minister to agree with that calculation and accept our amendment, which would allow these people to work while their cases were being decided. I beg to move.

The Lord Bishop of Winchester: My Lords, that is just another example of how much we owe to the noble Lord, Lord Avebury, and others for putting the case for this clause with remarkable exactness, giving those figures with all that they suggest. Even without his advocacy, this proposal is sheer common sense. I do not think the Minister will be able to say, as he has tried to say about other amendments, that this is sweeping stuff and that it is all wrong for the country. The downside is that people are deskilled, their dignity is taken away, the cohesion initiative and policy is damaged and they become dependent. They could be developing their skills and contributing to the life of this country. As the noble Lord, Lord Avebury, implied, they could be ready to take a place in their own countries in the future when those countries change their political situations. If we leave aside the staggering figures that he offered, this is plain common sense and for these people not to be able to work is utter nonsense.

The Earl of Sandwich: My Lords, we are so conditioned to think of asylum seekers as taking things away from our society that it is a great refreshment to hear from the noble Lord about the contribution that they are making. It is also worth remembering that many of these people, although semi-desperate themselves, are supporting other people who are not in this country but are back in their own homes. I have just been talking to an Afghan family who know of relations in precisely that situation. I hope the Home Office will do more research into this, not only the contribution to our economy but the contribution to international development.

Baroness Miller of Chilthorne Domer: My Lords, it does not look as if we are going to hear from the Conservative Benches on this issue, and I am disappointed about that. On Tuesday, the noble Baroness, Lady Carnegy of Lour, who is not in her place, referred to the unfairness of the Guardian leader, which said that it was a shame that Conservative Peers were not going to support the amendment on destitution tabled by my noble friend Lord Avebury, and accused the Guardian of getting it wrong. However, when we voted today, there was no support from the Conservatives, which was disappointing. I would like to have heard what aspects of Conservative policy are preventing them supporting this amendment, which is a constructive suggestion. I shall not repeat the cogent arguments that my noble friend and the right reverend Prelate the Bishop of Winchester made, but it is important that we air the reasons for the amendment and those for not supporting it, if there are any, as well as hearing from the Minister about why the Government do not want to support it. This is an important amendment because the public perception of asylum seekers is that they come here and live on benefits. During the debate on the destitution amendment, we heard that asylum seekers are not doing that, but we

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do not allow them to work while they await their voluntary or involuntary removal. In no way can we be said to be being constructive about this at the moment.

Lord Bassam of Brighton: My Lords, this amendment gives the Secretary of State power to make provisions to give permission to work to failed asylum seekers who are not able to return to their country of origin or who we cannot return for any other reason and to asylum seekers whose asylum claim has been outstanding for more than 12 months.

Let me address this in two parts. First, the Government believe that managed migration is a valuable source of skills and labour for the British economy and that it provides a legitimate channel for those who wish to work in the United Kingdom. However, our view is that it is crucial to maintain the distinction between managed migration and the asylum process. I know that many people seek to conflate them, but that is wrong and it does not help, particularly when we have to explain our policies at large within the United Kingdom. Entering the country for economic reasons is not the same as seeking asylum. We do not allow asylum seekers to work as that could encourage asylum applications from those with no fear of persecution and slow down the processing of applications from genuine refugees. It is important to note that the prohibition against working does not apply to asylum seekers who are recognised as refugees following a successful asylum claim. Secondly, since 5 February 2005 specific provision has been made in the Immigration Rules for asylum seekers who have been waiting 12 months and more for an initial decision. These applicants can apply for permission to take up employment provided the delay is not attributable to them.

Furthermore, under new arrangements for the handling of asylum claims, the Border and Immigration Agency is focused on concluding asylum claims within six months of the date of application. Dealing with applications more quickly than in the past will ensure that individuals are not on asylum support for any significant length of time. Only a few asylum seekers will qualify to work under the 12-month provision. As we have made clear, asylum seekers generally cannot work while their claims are being considered. Equally it would be inappropriate to allow failed asylum seekers to do so when they have no legal basis on which to remain in the UK.

Giving failed asylum seekers permission to work may also create an incentive for them to remain in the United Kingdom when we expect all successful applicants to return home as soon as practicable. It is our belief that this amendment could open our asylum system to further abuse. For that reason we continue to resist it.

Lord Avebury: My Lords, it is certainly not constructive for the Conservative Front Bench to fail to make any statement on either this amendment or the previous one. I hope that they will abandon their silence on the remaining amendments because we want to know what the Conservative policy is. It is all very well for us to have the responses of the Minister,

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but for a discussion outside this House—and the Conservative Party represents a substantial body of opinion—your Lordships are entitled to hear what they think about these amendments, and, in the current debate, what they have to say about not allowing failed asylum seekers who cannot be sent back to their country to contribute to the economy.

I noticed that the Minister totally ignored the remarks I made about the economic benefit that might arise from the sort of amendment we have on the Marshalled List, but he did not challenge the figure.

Lord Bassam of Brighton: My Lords, I am prepared to say that—and I do not want to get into the practice of jumping back into debates—I think the noble Lord's figures were entirely speculative. I am not going to deal with figures that I do not think have sufficient veracity. Obviously our officials keep these matters under careful and detailed review; and it is right that we try to speed up the process of looking at and resolving legacy cases because that helps strengthen our system of immigration control.

Lord Avebury: My Lords, my figures are not speculative; they come from the Government. I talked about the 450,000 legacy cases. That figure has been quoted many times during the course of your Lordships’ debate. I also mentioned—I hope accurately—the Government's plans for disposing of these 450,000 cases, which they have said they will do by 2011; although, at the rate they projected that these would be dealt with, it could be considerably longer than that. I have taken the Government's figures as they have been relayed to your Lordships in other debates. I said that if only half those people were allowed to work—and half of 450,000 is 225,000—and we valued the contribution they make to the economy at the very modest figure of £10,000, that represents a loss to the country of £5.6 billion. I repeat: these are facts; they are not speculation. It is unworthy of the Minister to make that suggestion about arithmetic, which anybody can pick holes in if they are there to pick.

As the Minister did not answer on the first occasion I used the figures, and the reply he has come back with now does not address the point at all, I stick to my guns. This is what the Government are losing for the benefit of the economy by failing to allow long-term asylum seekers who have failed in their application to contribute their skills and talents to the economy.

Nor did the Minister say anything about the point made by the right reverend Prelate and me—that a lot of these people have skills and abilities, which they are willing and eager to contribute to the economy. I mentioned the particular case of Zimbabweans because, at the moment, it is not possible to send them back anyway because of the court case that is yet to be determined. Everyone in this House must know Zimbabweans who are skilled teachers, doctors—professionals of one kind or another—or tradesmen who would love to be able to contribute their skills to the benefit of the economy in this country. When Mugabe is finally got rid of, they would love to have enhanced abilities to rebuild the economy and the country of their origin.

So I am grossly dissatisfied—

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3.45 pm

The Lord Bishop of Winchester: My Lords, before the noble Lord continues to his peroration, I wonder whether he might have had it in mind to question the Minister on the opening sentences of his response. I was astounded that the Minister effectively insinuated that the noble Lord, of all people, was confusing migrants and asylum seekers. The amendment is crystal clear; the noble Lord’s speech was crystal clear; so was mine; but the Minister set off on an allegation that those things were being confused, that such confusion would be damaging and based the rest of his case on an entirely false premise. I wondered whether the noble Lord, Lord Avebury, was going to make that point before he drew to a close.

Lord Bassam of Brighton: My Lords, I really do not want to get into this as a practice, but I want to make this plain. I am not suggesting that either the noble Lord, Lord Avebury, or the right reverend Prelate the Bishop of Winchester conflates those things, but others do. I wanted to make that absolutely clear. I am not prepared to accept that I do not have a duty to ensure that that confusion does not arise. As for the general thrust of the argument of the noble Lord, Lord Avebury, there is clearly a disagreement between us, although I of course recognise that people who come to this country for whatever reason and with whatever status have skills and talents. There is no question about that; I am sure that that is a shared view.

Lord Avebury: My Lords, as the right reverend Prelate repeated, the Minister's premise, with which he began his argument, was totally false. No one in this Chamber confuses economic migrants with asylum seekers. We leave that to the tabloids, who either have the paradoxical attitude that my noble friend has just mentioned—that asylum seekers come here to sponge and to live on social security benefits when, in fact, most of them would be only too delighted if they were given the right to work. We want to give them that right and we will see what is the opinion of the House on that matter.

3.48 pm

On Question, Whether the said amendment (No. 18) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 77.

Division No. 2


Addington, L.
Alton of Liverpool, L.
Avebury, L.
Barker, B.
Best, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Chidgey, L.
Cotter, L.
Craigavon, V.
Darcy de Knayth, B.
Dearing, L.
Dholakia, L.
Dykes, L.
Erroll, E.
Falkland, V.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Howe of Idlicote, B.
Kirkwood of Kirkhope, L.
Listowel, E. [Teller]
McNally, L.
Maddock, B.

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Miller of Chilthorne Domer, B.
Ripon and Leeds, Bp.
Roberts of Llandudno, L. [Teller]
Roper, L.
Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Smith of Clifton, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tordoff, L.
Wallace of Saltaire, L.
Williams of Crosby, B.
Williamson of Horton, L.
Winchester, Bp.


Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bassam of Brighton, L.
Berkeley, L.
Bilston, L.
Bragg, L.
Campbell-Savours, L.
Christopher, L.
Clinton-Davis, L.
Crawley, B.
Darzi of Denham, L.
Davies of Oldham, L. [Teller]
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Howells of St. Davids, B.
Howie of Troon, L.
Jay of Paddington, B.
Jones of Whitchurch, B.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Montgomery of Alamein, V.
Morgan, L.
Morgan of Drefelin, B.
Moser, L.
Patel of Bradford, L.
Pendry, L.
Prosser, B.
Quin, B.
Rendell of Babergh, B.
Rogan, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Snape, L.
Soley, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Tomlinson, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Uddin, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

3.59 pm

Clause 19 [Points-based applications: no new evidence on appeal]:

Lord Avebury moved Amendment No. 19:

The noble Lord said: My Lords, we had a discussion on amendments similar to these in Grand Committee, when the Minister was in his usual unreceptive mode in response to what we thought was a perfectly reasonable case for an exception to the general rule that under the points-based system, all the evidence has to be submitted at the time of the application. We recognised, and we do so now, the difficulty that had to be faced by the Home Office when confronted with evidence submitted on the day

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of the hearing, or close to it, which the presenting officer had no real opportunity to consider or respond to appropriately. But we drew attention to the AIT’s power to exclude late evidence under Rule 45(4) of the 2005 Procedure Rules.

We have now gone to the opposite extreme, making it impossible for an applicant to correct a miscalculation of the points or a misunderstanding of the points criteria. As we pointed out, this could be absolutely disastrous for a person who is applying to extend his or her leave to remain, such as a university student continuing her course of studies. As we pointed out, the Minister’s suggestion that the person whose application is refused because she has not submitted the required evidence should lodge a fresh application is almost always going to be a non-starter for those seeking any kind of renewal of leave to remain, because in the meanwhile their existing leave to remain will have expired and they can no longer meet the conditions. As we noted, the Home Affairs Select Committee suggestion of a “minded to refuse” stage would have dealt with the problem, but would require a radical redraft of Clause 19. The Minister ruled that out as adding to the cost and complexity of the appeals process.

I have one further suggestion, which I hope that the noble Lord will consider, and I would have put this to him if we had had an opportunity for a longer meeting during the Recess, which we were promised. This is that we apply the proposed amendments only to appeals against refusal of an extension of leave to remain, because that is where the greatest harm to a person’s future life and career may be caused by a simple mistake. I am not asking the Minister to give me an off-the-cuff answer to this proposal, but to take it away and think about it so that if we can agree, a mutually acceptable amendment can be put down at Third Reading. I beg to move.

Baroness Hanham: My Lords, where I have a feeling that I can make a contribution to the Bill, I will make it, and where I do not, I will not. I broadly support the amendment. It is clear that the appeals system does not always work correctly. Where evidence is produced late, which is what the amendment is about, it needs to be considered at the same time where possible so that the ruling is not delayed. As my noble friend supported either this amendment or something similar in Grand Committee, we hope the Minister will be able to make some movement on this.

Lord Bassam of Brighton: My Lords, Clause 19 will ensure that in appeals brought against refusals of applications made under the points-based system—PBS—the appeals system considers the facts that led to the decision being appealed. That will ensure that the appeal is not an opportunity for applicants to patch up failed applications with new evidence.

The amendments would negate the purpose of Clause 19 by allowing new evidence to be submitted in all PBS appeals, subject to the sole condition that the evidence must have been submitted no later than the notice of appeal. Under the PBS, applicants will be told in clear terms exactly what evidence they need

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to submit to qualify for points. It is therefore perfectly fair to expect them to submit that evidence with their applications. There is no reason why they should be able to submit it later in the process with their appeals, as the amendments propose.

Our processes for handling PBS applications provide for one decision to be made. If applicants want to provide further evidence and consequently expect us to make a second decision, they must pay our administrative costs in remaking that decision. The appropriate channel to do that is by making a new application, not by relying on the appeals system. The purpose of the system is, as it says, to decide whether the appellant’s application was correctly refused. Allowing new evidence would mean that the Asylum and Immigration Tribunal would be making its own decision on a totally different basis from that of the Border and Immigration Agency.

As drafted, Clause 19 contains enough safeguards to ensure that it is fair. For example, new evidence will be allowed to challenge an allegation by the Border and Immigration Agency that a piece of evidence is not genuine or to refute a reason for refusal that is not based on the acquisition of points. We contend that Clause 19 provides a clear and transparent appeal system to complement the clear and transparent points-based system. In our view, these amendments blur that clarity and must be resisted.

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