Procedures for Granting and Withdrawing Refugee Status

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Caroline Flint: The case of anyone presenting themselves, whether or not they have documents, will be looked into. Through other measures, we are trying to tackle the problem of people destroying documents en route. That is why we are engaged in discussions about advance passenger information, and are looking at ways in which we can improve that information.

However, although we are aware of the abuse that happens—often, as the hon. Gentleman rightly pointed out, caused by the advice of those who traffic in people, who advise people to destroy documents—if someone presents themselves without documents, their case will be looked into. That is because there may be occasions on which, for totally understandable reasons, documentation is not available, or on which a person has had to get documentation by another means in order to get out of a country. However, we have to be mindful of the abuses that are happening. I hope that we will resolve some of those difficult issues through the work that we are doing, both on what happens before people come to this country and in terms of our staff working on the issue. The subject of destroying documentation has been raised by a number of other member states, too.

Mr. Malins: Arising from my hon. Friend's question on documentation, can the Minister confirm her understanding of the position on the new document offences in the Asylum (Treatment of Claimants, etc.) Bill? Is there no intention to prosecute anyone unless they have destroyed their documents—that is to say, is it that those who arrive undocumented will not be prosecuted, whereas those who have destroyed their documents will be?

Caroline Flint: I will have to get back to the hon. Gentleman on that.

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Mr. Malins: May I turn to the question of legal assistance? Article 13(2)(c) refers to legal aid being granted

    ''only if the appeal or review is likely to succeed.''

Is the Minister content with that provision, and who would make a judgment about whether the appeal was likely to be successful?

Caroline Flint: The issue around legal aid and why access to it is being confined to appeals is based on sound grounds. For one thing, it is important that the first process in the application can be done without the use of lawyers. Having said that, we partly fund organisations such as the Refugee Council to support those seeking asylum, and there are other organisations that are able to help at that stage. However, we believe that the point at which legal aid should be available is the appeal point, which is usually when the most difficulties occur in terms of people being refused on application.

Also, we must be mindful of what legal aid access we give to citizens of our own country. In this case, it would be wrong to suggest that there should be better provision for the group of people that we are talking about. The legal assistance provision would allow a test of whether the case would succeed. It would oblige lawyers to look at the merits of the case before launching an appeal. That is partly about trying to get around cases in which an appeal is sought almost automatically, with no real investigation of whether it meets the test of meriting appeal in law.

There has certainly been evidence of appeals being granted almost automatically, without any screening as to whether the case would stand up at the first hurdle of a test against the law. The whole point about appeals is to demonstrate that the law has not been implemented as it should have been, and that should prevent those appeals that are frivolous, for want of a better word. I think that the balance is right. There is general agreement about restricting the provision of free legal advice, and about recognising where it is most important in a proportionate way.

Mr. Malins: Does the Minister believe that, under the new system of asylum determinations in this country, there will be any appeals from the tribunal to any courts?

Caroline Flint: I understand that there will be an opportunity to appeal. We are trying to tackle the problem of repeat appeals; they have occurred in the past. The Minister responsible for that is dealing with the issue. I will give the hon. Gentleman some more detail on that point in writing.

Mr. Wilkinson: The question of unaccompanied minors is of great concern to my constituents, who have learned that supporting them is likely to cost the ratepayer or council tax payer an extra 3 per cent. in the coming financial year. Will the Minister please explain whether the United Kingdom, in all instances, will ensure that these individuals are interviewed? Will they in all instances have a representative, as the draft directive suggests? Finally, if they have been married, and if that can be proved—it is a difficult point—under

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article 15(2)(c), they will lose the representative that they would normally have enjoyed. It seems pretty odd to me.

Caroline Flint: It is important to consider the issue in terms of the standards outlined in the directive, and to bear it in mind that the directive has to be compatible with the convention on the rights of the child. These are matters in which more than one piece of legislation is relevant. It is our intention to abide by the requirements in terms of representation and the interview of the child. We should have high standards when we are dealing with unaccompanied minors.

On the issue of marriage, we must take into account the circumstances in which someone arrives and their age. Clearly, if someone is 17 and is married, we would have to look proportionately at their needs. Under the convention, a person under 18 is considered a minor. Therefore, we have to weigh up their needs as a minor and to take into account that they are also a married person. We know that in other countries, minors may be married at a much younger age than in this country. It is important that we abide by the convention on the rights of the child—at the end of the day, the needs of the child will be paramount. We must deal with them first and then consider any other circumstances that apply. Of course, children who have been married against their will overseas may come into this country; it may be one reason why they are seeking asylum in the UK. We must look at the issue of marriage and deal with it in the context of the individual involved.

Mr. Malins: We were talking of how, under the new system, applicants will have an opportunity to appeal from a tribunal to a court. I think the Minister said that she understood that there would be an opportunity to appeal in that way. Can she confirm that there will be such an opportunity?

Caroline Flint: I understand that there will be a limited opportunity to do so. I shall write to the hon. Gentleman giving him further details on the matter in due course.

Mr. Wilkinson: May I deal with the issue of the whereabouts of individuals while applications are being processed? Article 17(1) states:

    ''Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum''.

Am I right in thinking that Her Majesty's Government intend applicants to be in centres such as Harmondsworth while their application is being processed? If they cannot be held, what possible control can the authorities have over those individuals? Will not they just disappear into the indigenous communities, or can the Minister reassure us that there will be effective control without detention?

Caroline Flint: The hon. Gentleman and my hon. Friends are aware that in certain circumstances the UK Government have used detention. However, it is important to remember that we are not in the business of holding every person who claims asylum in

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detention, and the fact that that is laid down makes the point. It should not be the sole reason why someone is detained.

The reasons for detaining people in this country usually concern issues such as an application that has already been made, even though there have been significant queries about its validity from the outset. Those could be about documentation or any of a number of factors that arose at the initial interview and caused officials to think that the person's claim was likely to be invalid. There are other issues, such as the likelihood of the person absconding or not sticking to the conditions if given temporary leave to enter the country. In such circumstances, detention is required. That is usually decided once it is known, after an application has been made, that there is a concern that it will not be valid, or that there is a risk of flight or of the individual's not abiding by the conditions of temporary access. In other circumstances, removal could be an option as well. In all cases, intelligence and information allow our officials to make informed decisions as to whether a person—particularly if poor evidence is provided—should be detained in order to be fast tracked and removed from the country.

Motion made, and Question proposed,

    That the Committee takes note of European Union Document No. 14686/03, amended draft Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status; notes that this forms part of the package of measures creating a Common European Asylum System, and supports the Government's position that the Directive should properly take into account the needs of Member States to adapt policies in response to changing situations—[Caroline Flint.]

2.37 pm

Mr. Malins: It is worth considering the background to the document and why it is before us. Article 63 of the treaty of Amsterdam required us, within five years of the coming into force of the treaty—that means by May 2004, now 12 weeks away—to adopt various measures. Those include measures on minimum standards for procedures for granting and withdrawing refugee status. Colleagues may not be surprised to know that the draft directive has still not been agreed after well over four years of negotiation, despite the fact that in 2002 the European Council demanded that the directive be adopted by the end of 2003. That was impossible, given the nature of the objections by so many countries; it was never going to happen.

Is anyone surprised that, four years on, we have not reached an agreement? I am not. A failure to agree should come as no surprise to those who are familiar with the ways of the European Union. On the one hand, we see the dilatory approach of many of the EU institutions, reinforced by a lack of efficiency and of innovation—a desire to get stuck, so far as I can see. On the other there are the obvious, foreseeable and understandable conflicts of views and interests among the EU nations. Those are not easily reconciled. No wonder there is delay and an absence of agreement.

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I imagine that huge pressures are building at the moment. The Irish presidency wants to get it right, and will come under strong pressure to get the directive approved before the accession of the new member states, principally from eastern Europe, on 1 May, only weeks away. Realistically, it cannot possibly be settled by the time of the accession of the new member states, and undue pressure to secure agreement before then would be wholly wrong; it would be based on a desire not to permit the new states to have their arguments heard publicly and taken into account. I was surprised to hear from the Minister that there would be opportunities in the near future for the matter to be debated in the House. If it has to be agreed by May—I suggest that the Government will try to do that even if it means giving far too much away—the chances of our having a good look at the document again are slim.

What about the concept of harmonising our approach with 24 other EU nations towards asylum applications? Superficially, that is a great idea. It might make life much more straightforward for all concerned. It might be easier for refugees, their advisers and Governments. It should, as the Minister says, help to end the practice of asylum shopping. The argument is that by laying down minimum standards for the genuine asylum seeker, any given EU country should be as welcoming to the genuine asylum seeker as any other. I do not buy that argument for one minute. I think that certain EU countries will be magnets for asylum seekers and economic migrants, irrespective of whether we adopt the directive. To say that it will end asylum shopping is to ignore reality.

Anyone who says that having a commonly agreed directive and commonly agreed standards is a good idea reflects an underlying acceptance—which I frankly do not feel, and I do not think that my hon. Friends feel either—that the EU is in effect a single entity and that its asylum policy should be dictated by EU institutions rather than by the national and sovereign parliaments of the member states.

 
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