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Asylum and Immigration (Treatment of Claimants, etc.) Bill

Asylum and Immigration (Treatment of Claimants, etc.) Bill

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Standing Committee B

Thursday 22 January 2004


[David Taylor in the Chair]

Asylum and Immigration
(Treatment of Claimants, etc.) Bill

Clause 11

Unfounded human rights or asylum claim

9.10 am

Mr. David Heath (Somerton and Frome) (LD): I beg to move amendment No. 150, in

    clause 11, page 13, leave out lines 9 and 10 and insert

    'entitled to reside in the State or part and that the claimant—

    (a) confirms that he is within that description, or

    (b) can be shown by documentary evidence to be within that description.'.

Good morning, Mr. Taylor. I welcome you to the Committee. It is also good to see the Minister of State back in her place.

The clause deals with the so-called white list. Liberal Democrat Members have serious reservations about the white list process and the change that the Government propose to that process. Our amendment is narrowly drawn. It would simply leave out lines 9 and 10 and insert a slightly crisper and more evidentially based form of words.

I shall not digress into the consequence of the clause in totality. That can be properly debated under later groups of amendments. At this stage, I shall say simply that we are seeking to put at least some constraint on the discretion of the Secretary of State to form an opinion and, on the basis of that opinion, to apply that part of the clause.

If the amendment were successful, there would have to be some substantiated evidence for the Secretary of State's opinion. It could be argued that the Secretary of State's opinion could be challenged in any case if it were held to be improper by judicial review, but I am trying to obviate that process. We should not encourage matters to be challenged in the courts. I would expect the Secretary of State to have a degree of evidence for his assertion that a person was of a particular group before making the declaration that is inherent in the operation of clause 11.

That is a brief explanation of the basis for the amendment. I hope to widen the scope of the debate under later amendments with regard to what the Government intend but what I have said so far is sufficient to introduce the debate.

The Minister for Citizenship and Immigration (Beverley Hughes): Before I deal with the amendment, it may be helpful to make some general comments about clause 11. It provides for a relatively modest extension of the powers in section 94 of the Nationality, Immigration and Asylum Act 2002, under which a state or part of a state can be designated as safe if certain conditions are met. Hon. Members may

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be aware that there are two tests for that. One is that there is, in general, no serious risk of persecution of those entitled to reside in the state. We are talking about that issue now, rather than a safe third country, to which the next clause relates. The other test is that removal of a person entitled to reside in the state would not, in general, contravene our obligations under the European convention on human rights.

Since section 94 came into force, 14 states have been designated by order under that provision. Those are in addition to the 10 EU accession states included in the 2002 Act, which a later amendment to clause 11 would remove. Designating a country does not mean that a person's asylum or human rights claim will not be considered on its merits. Every claim is given an individual assessment, taking account of all the facts, but if a claim is refused—this is the law we have now—it must be certified as clearly unfounded, unless the Secretary State is satisfied that it is not. Such a certification prevents a person from lodging an appeal until they have left the United Kingdom. These provisions have been working extremely well.

Mr. Heath: The right hon. Lady has just mentioned the capacity of appeal from abroad, which certainly exists technically. Will she tell me how many appeals have so far been lodged under that measure because, by March 2003, in the first two months of operation, there were no appeals at all.

Beverley Hughes: There certainly have been some since, and I will get the number for the hon. Gentleman before we end this debate.

Clause 11 will enable a country or part of a country to be designated, for the purposes of section 94, in respect of a ''description of person'', where the Secretary of State is satisfied that the refugee convention and the ECHR tests that I have outlined apply to the description of person in the country in question. This provision will give us greater flexibility in respect of section 94 powers. We may not consider that the two-part test set out in the section has been met when taking all the population of a given country together, but there might be occasions when it would be useful and appropriate to designate that country with regard to a specified group of persons for whom that test is met.

New subsection (5C), inserted into section 94 by clause 11, details that to which a ''description of person'' may refer. We have listed seven specific examples of attributes or circumstances that we think are most likely to be relevant to this particular power. We have added a final category covering any other attribute or circumstance that the Secretary of State considers appropriate. We will consider that list in debates on later amendments.

Amendment No. 150 requires that, for the Secretary of State to be satisfied that a person is within one of the given descriptions, the person must confirm that, or there must be documentary evidence to that effect. I can understand the general principle that we should proceed on the basis that a person is within a given description only if we have good reason to do so. We have no intention of proceeding on any other basis. That principle is already reflected in the clause,

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because it requires the Secretary of State to be satisfied that a person is within a given description—this necessarily imports a requirement of reasonableness on the part of the Secretary of State.

However, I do not think that the limitations imposed by the amendment are appropriate. I understand that the Liberal Democrats are opposed in principle to the mechanism of designating countries as safe—they opposed it in the debates on the 2002 legislation and some of the amendments they have tabled to this clause obviously underline that opposition. In fact, the operation of the non-suspensive appeal mechanism that follows from the certification power in section 94 has been phenomenally successful in reducing unfounded asylum claims from the countries concerned. In respect of the first-wave countries, the accession countries, there was a dramatic reduction in unfounded claims as a result of that measure within the first three months of implementation of the Act.

It is at this point that I would like to raise the sights of the members of this Committee from the rather forensic attention to detail that we saw in the debate on clause 10. I remind them of the other context in which we are operating. While the Opposition clearly have a duty to scrutinise the principle and the practice of the Bill, to make their points and to ensure that the provisions are operationally feasible and logistically possible, they also have an obligation to understand the context in which we are working—the fact that the vast majority of unfounded claims are fuelled by organised crime, and people are exploited by being sold a service; they are told that they can get here and that they claim support under the asylum system as a means of staying here while their claim is assessed. This situation is a huge disadvantage to people who are genuinely fleeing persecution. It undermines public confidence in the asylum system and damages race relations in the community.

I made these points at the start of our debates on the Bill, but I have to remind Members that we are trying to strike a balance. We have had to fight tooth and nail with Opposition Members to put measures on the statute book that are now showing themselves to be effective in striking that balance.

Mr. Humfrey Malins (Woking) (Con): Not me.

Beverley Hughes: I agree that the hon. Gentleman did not oppose this particular measure in principle, although I recollect that he had some comments to make during the passage of the Nationality, Immigration and Asylum Bill. To the Liberal Democrats I simply say, in a spirit of trying to work together, that we have to remember the big picture and what we are trying to achieve here. Like some of my hon. Friends, I would like to hear some comments from Opposition Members that reflect their concern both for genuine refugees and a system that works for them and for the people whom they represent, the members of the British public, many of whom are from minority ethnic groups and whose relationship with their communities is being damaged because people do not have confidence in the system.

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The limitations imposed by the amendment are not appropriate. Some examples will quickly illustrate that. Were the amendment to be passed, an applicant could simply deny that they were a man. They might look like a man but they could say that they were not, and the clause would be inoperable as most asylum seekers have no documents with them that would tell us legally that they were a man. A similar argument could apply where a person simply denied that they spoke a certain language and refused to speak. How could we make them? We have no documentary evidence that they speak that language.

The right way to approach the matter is to place a general requirement on the Secretary of State to be satisfied that a person is within a given description. That is how section 94 of the 2002 Act operates, where a Secretary of State is deciding whether a person is resident. Clearly, unless we are satisfied that that condition is met, we will not proceed. As the hon. Member for Somerton and Frome (Mr. Heath) acknowledged, a condition not being met is a matter that can be raised in court and in tribunal proceedings.

Nothing in clause 11 affects the current position that every asylum or human rights claim is considered, and will be considered, on its individual merits. Therefore, when a person is a resident of a country designated in respect of certain categories of person and fits one of those categories, their claim will still be properly assessed. The consequence of fitting one of the categories is that, if the person's claim were refused, it would have to be certified as unfounded, with the consequential impact that that would have on any appeal.

On that basis, I urge the hon. Gentleman to withdraw the amendment. I cannot accept it, and I hope he can see from some of the examples I have given that it would make section 94 and clause 11 inoperable.


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