Select Committee on Home Affairs First Report

4  Removal to a 'safe third country'

44. On 27 October the Government announced its intention to legislate so that a person will not be able to challenge their removal to "certain safe third countries" on the basis of the way they will be treated. The designated countries "will be those where we are satisfied that an individual will be neither persecuted nor subjected to torture or inhuman or degrading treatment or punishment, nor one which would remove a person in breach of the principles of the Refugee Convention or the ECHR".[39]

45. Commenting on the proposal, JUSTICE told us that the Government is vague in respect of the criteria for designation of 'safe third countries', which is a concept unknown to the 1951 Refugee Convention. They argued that, in order not to breach the principle on 'non-refoulement' (i.e. that refugees should not be returned to a territory in which they would be at risk), it would be necessary for the UK to "undertake a proper assessment as to whether the third country concerned is indeed safe". JUSTICE maintained that the evolving concept of 'safe third countries' is evidence of a marked trend towards regionalisation of refugee movements, i.e. their containment in their regions of origin, and represents "a total abdication of states' responsibility under the Refugee Convention".[40]

46. Mr Peter Gilroy of Kent County Council told us that the Government's proposal "makes good sense". He suggested that the EU directive on minimum standards of reception for asylum seekers, which is due to come into force in February 2005, could be used to encourage 'safe third countries' to welcome asylum seekers in a way that would not breach international conventions.[41]

47. Clause 12 of the Bill replaces and extends the existing provisions on 'safe third countries' contained in sections 11 and 12 of the Immigration and Asylum Act 1999. It provides for circumstances in which a person can be removed to such a country without substantive consideration of his asylum claim. Under the provisions in the 1999 Act, a person can challenge his removal to a 'safe third country' on the grounds that it would be unlawful under the Human Rights Act as a contravention of his rights under the ECHR. Under the new provisions that right will be removed. Part 2 of Schedule 3 to the Bill lists the countries that will be deemed 'safe': they are the members of the enlarged European Union as from May 2004 plus Norway and Iceland. Additional countries may be added by Order under (except in cases of urgency) the affirmative procedure. 'Safe third countries' are to be treated as places:

  • where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
  • where a person will not be treated in a manner which is inconsistent with his rights under the Human Rights Convention (whether by removal from that State or otherwise), and
  • from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.[42]

It should be observed that the list set out in part 2 of Schedule 3 is a list of 'safe third countries', i.e. countries in which, in the view of the Government, asylum seekers could have safely claimed asylum when passing through them on their way to the UK. It is not a list of countries of origin to which unsuccessful asylum seekers may be returned.

48. The Government notes that under Strasbourg case law, States have a responsibility to ensure that a person is not, as a result of their decision to expel them, exposed to treatment contrary to Article 3 of the ECHR (prohibition of torture and inhuman and degrading treatment). The Government states that it "is satisfied that in relation to those countries included on the relevant list it will be meeting its obligations in relation to Convention rights".[43]

49. The Minister of State told us that the Government's proposal in relation to 'safe third countries' "is not going terribly much further than where we are at the moment".[44] When asked about the suggestion, made by some organisations, that the proposal might be "a back-door way of giving legal authority to the concept of regional processing zones", and that such zones might be listed as 'safe third countries', the Minister replied, "No. It has no relevance to that at all".[45]

50. The Government's proposal raises some issues similar to those we considered in our earlier report on asylum removals in connection with the provision for 'non-suspensive appeals' under section 94 of the Nationality Immigration and Asylum Act 2002. That provision allows removal from the UK to take place when an appeal is still pending, in cases where the Secretary of State (in practice, an immigration officer) is satisfied that the asylum claim is "clearly unfounded", and has been made by a person entitled to live in particular states deemed to be safe.[46]

51. In our earlier report we commented that—

    "We accept that in most, if not all of the countries so far designated, it is reasonable for there to be a presumption against a well­founded fear of persecution. Even in these countries, however, there may well be occasional exceptions, usually arising from the inability of the State to protect the citizen from non­State persecution."[47]

We think that this comment is applicable also to the countries listed in Schedule 3 to the present bill.

52. In our earlier report, we recommended in relation to non-suspensive appeals that—

    "if the Secretary of State wishes to add further countries to the list in Section 94 of the Nationality, Immigration and Asylum Act, he should append a written memorandum to the relevant Statutory Instrument, explaining the rationale for believing those countries to be safe."[48]

The Government rejected this recommendation, on the grounds that the Secretary of State would take any decision to add a country on the basis of information which is already publicly disclosable, and that "any specific concerns that might exist in relation to the designation of a particular country can be raised during the debates on the draft Order".[49]

53. We do not regard these arguments as persuasive. The fact that information is publicly disclosable does not mean that it is readily available. A decision to designate a country as 'safe' may have profound implications for the rights of asylum seekers returned there, and in taking such a decision it is reasonable to expect that Parliament should have access to the same information—at least in summarised and digested form—as that available to the Secretary of State. We repeat our earlier recommendation, in respect of non-suspensive appeals, and make a similar recommendation in respect of the proposals relating to 'safe third countries' in the present Bill , i.e. that if the Secretary of State wishes to add further countries to the list in Schedule 3 to the Bill, he should append a written memorandum to the relevant Statutory Instrument, explaining the rationale for believing those countries to be safe.

54. We also recommend that the Government should make a clear statement of the circumstances which might trigger a decision to seek parliamentary authority for the removal of a country from the list of 'safe third countries'. In particular, we expect that satisfactory mechanisms will be set up within Government to keep the human rights situation in 'safe third countries' under review, so that they do not remain on the list if that situation significantly deteriorates and they cease to be safe.

39   Appendix, pp 26-27 below Back

40   Ev 25-26 Back

41   Ev 27 Back

42   Schedule 3, part 2, para 3 (2) Back

43   Explanatory notes, para 140 Back

44   Q 864 Back

45   Q 868 Back

46   The states originally listed were Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia. In March 2003, Parliament approved a Statutory Instrument adding to the list the Republic of Albania, Serbia and Montenegro, Jamaica, Macedonia, the Republic of Moldova and Romania. Back

47   HC (2002-03) 654-I, para 41 Back

48   Ibid., para 42 Back

49   HC (2002-03) 1006, p 4 Back

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Prepared 16 December 2003