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Mr. Letwin: I welcome what has been a slow but steady acclimatisation on the part of the Home Secretary to the merits of the argument that we began making about eight months ago—that the resuscitation of the bilateral agreement and, as far as possible, multilateral agreements that work is key to resolving the chaos of the asylum system. He has even moved a little further today than in the past few weeks, and that is very welcome. We want to strengthen his hand, and he is right to say that some parts of new clauses 14 and 15—the meat before us tonight—will have that effect, or at least seek to achieve it.
New clause 14(3) and (4) have that intention and are welcome. New clause 15(2), (4) and (5) also seek to achieve that effect. If I have understood the articulation of those subsections correctly, they relate precisely to the case in which a person comes to the UK having most immediately been in a country other than their country of origin. In the example of France, the provisions would allow the Home Secretary, if he is equipped with the appropriate bilateral or multilateral agreement, to remove the person back to that safe country without the possibility of appeal. That is clearly an appropriate legislative underpinning for the resuscitation of the 24-hour rule that
obtained in the bilateral agreement while it was in force, and we support it as a necessary consequence of our long-term argument in favour of the resumption of such an agreement. On that point, we are not one iota apart from the Home Secretary.As I mentioned when we debated the initial question of the recommittal of the new clause to Committee, the problem that we face is that the Home Secretary has ingeniously allied the subsections that I just mentioned to other subsections—new clause 14(2) and new clause 15(1) and (3). Those subsections are about something different. They have the intention that the Home Secretary—which in this case means a rather junior official acting on behalf of the Home Secretary—should be able to make the judgment that a particular application is "unfounded". It is extraordinarily difficult to know how the official in question will make the decision that a claim is unfounded. By its very character, the decision is difficult to make.
In his remarks on this group, the Home Secretary mentioned frequently the example of a case in which the person presents no evidence at all. In such a case, I accept that it is relatively easy to decide that a claim is unfounded. When people who wander in and claim asylum are asked for evidence that they are subject to persecution and are unable to say anything at all, in any language, that might suggest that they have ever been or would ever be subject to persecution, I am bound by logic to accept that their claims would be, in any ordinary sense, unfounded.
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However, the number of such claims is, of course, minimal. Most of the people whom we are discussing in connection with the subsections will have said something in defence of their claims. They may not have said very much, or been very articulate, and they may have spoken about countries that, on the whole, are not very dangerous. Yet they undoubtedly will have said something, and the subsections to which I referred will call on junior officials to make the judgment that their claims are utterly unfounded, when such judgments might otherwise have fallen to an adjudicator on appeal.
The Home Secretary sought to counter what he suspected would be one limb of my argument when he spoke about the advisory committee that he wants to establish. That committee will decide whether the country in question might be dangerous.
I welcome the Home Secretary's idea of an advisory committee, although it does not go far enough. I do not accept that the present system of country risk assessment is merely in need of oversight by an advisory committee. That oversight is welcome, but the present system of country assessment is woefully and intrinsically deficient. I do not believe it likely that any Government agency will ever be able to conduct country risk assessments with the speed and confidence necessary to allow a junior official to decide that a claim is wholly unfounded, and to do so with the conviction required to sustain judicial review, among other things.
If the Home Secretary wants new clause 14(2) or new clause 15(1) and (3) to have any chance of sustaining themselves under judicial review, he will need to move to genuinely independent country risk assessment, at the very least. Even with that, there is a real question about
whether it is proper for a junior official to decide whether a claim is unfounded, and to force the person involved back to the country from which he or she came—if, indeed, that is possible. That person would then have to conduct an appeal from that country. If the junior official makes an error, I have the gravest reservations about whether the case could be brought to a just conclusion.The Opposition face a great difficulty, therefore. We want to back the Home Secretary in some subsections of the new clauses. Those provisions are necessary and safe, and there is no question that returning a person to France, Denmark or any EU country, for example, is anything but a perfectly legitimate act for the British state. It runs no risk of compromising that person's life or liberty. However, by the same token, we want to resist new clause 14(2) and new clause 15(1) and (3). The Home Secretary has so designed the new clauses as to ensure that we cannot achieve both desires simultaneously.
I suspect that the matter will be pressed to a Division by Liberal Democrat Members. If so, we will vote with the Government and against the Liberal Democrats, although we will have to hold our noses over the subsections of which we disapprove. We will seek to engage the interest of our noble Friends in another place to disentangle new clause 14(2) and new clause 15(1) and (3) from those other provisions with which we agree.
I fear that that will lead, yet again, to debate and discussion taking place between Members of the two Houses. That is not, I think, one of the Home Secretary's favourite occupations, but I see no other way to make progress. I am determined that we should give the Home Secretary the support that he deserves in regard to those provisions that are right and which make it possible to imagine that bilateral agreements will come back into play. However, I intend to preserve our determination to avoid, if we can, compromising improperly the safety of individuals through those subsections that pose a threat to their safety.
Mr. Gerrard: I shall make a brief contribution to the debate. I understand the concerns expressed by my right hon. Friend the Home Secretary about the way in which the process is sometimes dragged out deliberately by advisers and lawyers who know from the start that victory in a case is unlikely. Those of us who deal with asylum cases will be familiar with those instances in which atrocious advice is deliberately given with no other aim than to drag the process out. We all see such cases, and I understand my right hon. Friend's concern about them.
A proposal similar to the one in the new clause was contained in the Asylum and Immigration Act 1996. I remember the debates on that legislation, in which we discussed proposals from the then Home Secretary that would have allowed people with manifestly unfounded cases to be sent back to the countries from which they had arrived. The proposals then allowed those people to mount appeals from those countries.
In the 1996 debates, my right hon. Friend the Prime Minister was the shadow Home Secretary. His view as to whether the proposed course of action was right was rather different then. Some of the concerns raised about the proposals in the 1996 Act are being raised again about the provisions in the new clauses.
We can tell people removed to a third country that they have a right of appeal from that country, but we cannot guarantee that that person will be allowed to stay in that third country until an appeal is heard. It is quite possible that they will be sent on somewhere else, or back to where they came from. We have no control over such people once they have been removed from the UK.
Experience with other appeals, such as family visit appeals, that are held on paper as opposed to being held in person, shows that adjudicators trying to judge the credibility of a person's story are more likely to respond positively when they can hear that person speak. That can be of critical importance when adjudicators come to decide whether an appeal should be allowed.
I should like some clarification because, from my reading of the new clause, it seems to deal only with removals to a safe third country as it refers to a country of which a person
- "is not a national or citizen".
Mr. Gerrard: That is an important point, and I want to be clear about it. Subsection (3) is quite clear, but some of the briefings and reports sent to us by outside organisations suggest that someone could be summarily removed back to their country of origin. I would be seriously concerned if that were the impact of subsection (2).
Much of the debate so far has focused on sending people back to France, Germany or Denmark, where they might have been able to claim asylum but did not, as opposed to sending them back directly to their country of origin. That is an important issue, and I would like the meaning of subsection (2) to be made absolutely clear. Does it mean that people can be summarily returned to their country of origin? If that is a possibility, it puts a very different perspective on the new clause.
We have already referred to who will make the decisions on certification and how those might be challenged. If decisions on certification are to be made by a caseworker at a port of entry, perhaps very quickly, and even though, on paper, a judicial review might be possible, it might be difficult for someone to take that route if they have been unable to obtain easy access to legal advice, as mentioned by my hon. Friend the Member for Slough (Fiona Mactaggart).
Oakington has been described as a place that would be used for cases that appeared to be unfounded. A pattern seems to be emerging that the people sent to Oakington are from certain countries of origin. One wonders whether that is the criterion, rather than what the individual said when arriving at the port of entry. We will get close, if we are not careful, to a white list in another form if countries of origin become one of the main deciding factors in whether a case is manifestly unfounded.
One of my greatest concerns is that this could be a critical decision affecting the individual, particularly if it involves summary return to the country of origin. It is
essential, therefore, to get the initial decision right. Comments made by the hon. Member for West Dorset (Mr. Letwin) rang some bells. It is easy to talk as if there are only two classes of asylum claimants—those who will be given asylum because their cases are evidently well founded, and those, at the other extreme, whose cases do not have a shred of credibility. The reality, however, is that among the many thousands of people who claim asylum each year is a whole spectrum of cases, from one extreme to the other. We are trying to draw lines in that spectrum. Inevitably, with regard to which cases are certified and which are not, people will be bunched around that line. There will be very fine divisions between claims being certified or not. It concerns me that very small differences between individuals might lead them to be dealt with in significantly different ways in respect of whether they have a right of appeal.
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