UK Borders Bill

moved Amendment No. 28: 28: After Clause 22, insert the following new Clause— ““Appeal rights In section 83(1)(b) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: asylum claims) the words ““for a period exceeding one year (or for periods exceeding one year in aggregate)”” are omitted.”” The noble Lord said: My Lords, the Refugee Children’s Consortium brings together a very wide cross-section of voluntary agencies working with children in a refugee situation and throughout the United Kingdom. That consortium is deeply concerned about the protection of the rights of appeal for children in one important respect. Section 83 of the 2002 Act generally provides a person who is refused asylum with a right to appeal even though he or she has been granted leave to enter or remain for other reasons. However, Section 83(1)(b) denies that right if the leave granted amounts to no more than one year. That predominantly affects unaccompanied children seeking asylum. In 2006, unaccompanied children accounted for 84 per cent of all grants of discretionary leave, despite constituting only 13 per cent of applications. The recent change to the discretionary leave policy lowered the age to which discretionary leave would be granted from 18 to 17½, with effect from last April. Many more unaccompanied children seeking asylum will be caught by Section 83. Currently, about 1,500 children are aged 16 or 17 on arrival. The majority of those are likely to be over 16½ by the time an initial decision is made on their asylum claim and are, therefore, likely to be denied access to the appellate system while they remain children. In Grand Committee, my noble friend restated the Government’s position that if leave is granted for a period of less than 12 months, "““it is reasonable to expect the applicant to wait until the expiry of that leave before he or she is entitled to bring a statutory appeal””.—[Official Report, 18/7/07; col. GC 90.]" However, this response assumes that the appeal is delayed only until the point at which leave expires, while in reality the wait is much longer, because, before an appeal can be launched, the applicant must await a decision on their extension application. In the past, applicants have been left waiting for many months and years for that decision. Although the new asylum model aims to reduce such delays, the target for resolving cases within six months does not work for these cases. Although the Home Office may argue that the target is met by the grant of discretionary leave within six months of the initial asylum claim, Section 83 prevents these cases being resolved. The risk is that the new process achieves nothing for these cases and individuals remain waiting for many years to resolve their case. The current delay in settling an applicant’s status discriminates against children. In Grand Committee, my noble friend refuted this contention on the grounds that Section 83 is not restricted to asylum-seeking children, but rather applies to all those granted leave of 12 months or less. What he failed to acknowledge was that those affected by the provision are nearly all children. The only other group for whom discretionary leave is habitually granted for less than 12 months is those excluded from protection under the refugee convention and the Government have admitted in the course of this Bill that these are very few in number, "““possibly tens rather than hundreds””.—[Official Report, Commons, UK Borders Bill Committee, 13/3/07; col. 310.]" It was argued in Grand Committee that the significant lapse of time between the initial application and the appeal is seriously problematical for children and can result in significantly less favourable treatment of them in the appeals process. At a significant time after the relevant events, it is much harder to gather evidence for appeal. For example, many children will find it difficult to recollect important details and it is often impossible to trace important witnesses. The lapse of time is in contradiction to a central pillar of the new asylum model, by which the Home Office seeks to improve initial asylum decision-making. The NAM ordinarily requires the Home Office decision maker to defend his or her refusal in person or at any appeal. His provides a strong incentive for the decision maker to make a careful decision. However, if the decision-maker knows that no appeal can be brought for several months, possibly years, the incentive is lost. Some children lose contact with their lawyers before their appeal is heard, which results in many being unrepresented at the hearing. As immigration judges are required to consider the circumstances pertaining at the time of appeal, it is always likely to be disadvantageous to children to have their appeal dealt with a year, at least, after the decision to refuse asylum. If the length of delay means that the young person’s appeal is heard after they become 18, this can put them at a further disadvantage. This is chiefly because children benefit from a more generous application of the Legal Services Commission merits test for legal aid funding than adults. If the first chance to appeal against the refusal of asylum occurs once the child has become an adult, they will be merits tested at the adult standard and may, therefore, be denied representation of their appeal. The effect of Section 83, the consortium has persuaded me, is to delay a young person’s access to an appeal before the Asylum and Immigration Tribunal. That makes the social worker’s job of planning for the young person’s departure—they charge for this work—virtually impossible because the young person concerned will always have a reasonable chance or hope that the decision to refuse asylum will be overturned. I beg to move.