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Session 2004 - 05
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Standing Committee Debates

Fifth Standing Committee on Delegated Legislation

Fifth Standing Committee on Delegated Legislation

The Committee consisted of the following Members:

Chairman: Chairman: †Mr. Bill O’Brien

†Baird, Vera (Redcar) (Lab)
†Betts, Mr. Clive (Sheffield, Attercliffe) (Lab)
†Browne, Mr. Desmond (Minister for Citizenship and Immigration) (Lab)
†Campbell, Mr. Ronnie (Blyth Valley) (Lab)
Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
Clifton-Brown, Mr. Geoffrey (Cotswold) (Con)
†Donohoe, Mr. Brian H. (Cunninghame, South) (Lab)
Heathcoat-Amory, Mr. David (Wells) (Con)
†Heppell, Mr. John (Lord Commissioner of Her Majesty’s Treasury) (Lab)
†Lloyd, Tony (Manchester, Central) (Lab)
†Malins, Mr. Humfrey (Woking) (Con)
†McCabe, Mr. Stephen (Birmingham, Hall Green) (Lab)
†McKenna, Rosemary (Cumbernauld and Kilsyth) (Lab)
†Oaten, Mr. Mark (Winchester) (LD)
Page, Mr. Richard (South-West Hertfordshire) (Con)
Williams, Mrs. Betty (Conwy) (Lab)
Nerys Welfoot, Committee Clerk.
† attended the Committee

Tuesday 8 February 2005

[Mr. Bill O’Brien in the Chair]

Draft Asylum (Designated States)
Order 2005

2.30 pm

The Minister for Citizenship and Immigration (Mr. Desmond Browne): I beg to move,

    That the Committee has considered the draft Asylum (Designated States) Order 2005.

I welcome you to the Chair, Mr. O’Brien. We ought to be able to deal with this issue without any great controversy, and I suspect that we will not call on you to exercise your skills as a Chairman to keep us in order. Indeed, I hope that we deal with the order expeditiously.

The Committee will be familiar with the subject that we are dealing with, because this is the third order introduced to add countries to the list to which the non-suspensive appeal provisions in the Nationality, Immigration and Asylum Act 2002 apply. Originally, 10 countries were listed in the 2002 Act. Those were removed on 1 October 2004, when section 27(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 commenced. The removal of those countries from the list flowed from their accession to the European Union. We also made two orders that added 14 other countries to the list. The Committee debated those orders in March and July 2003, and the draft order would add India to the list.

As the Committee will know, we have, for the time being, suspended the enforced removal of failed asylum seekers to the southern coast of India. That is in line with our overall policy on areas directly affected by the Boxing day tsunami. I should say at the outset that the devastation caused by the tsunami does not have any bearing on the addition of India to the list of countries designated for non-suspensive appeals. The majority of India is largely unaffected by the tsunami, which was a tragic natural disaster. We have responded appropriately and in a sympathetic fashion. That does not alter our view, which we hope to persuade the Committee to share, that India is generally safe in the context of asylum and human rights claims. People do not routinely flee persecution, and few need our protection under the UN refugee convention or the European convention on human rights.

The 2002 Act provided a list of countries from which asylum or human rights claims are to be certified as clearly unfounded, unless the applicant is able to satisfy the Secretary of State that their claim is not clearly unfounded. Applicants whose claims are certified as clearly unfounded do not have an in-country right of appeal against refusal of their asylum or human rights claim, but they do have a right of
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appeal, which can be exercised only outside the UK. Applicants from countries designated for non-suspensive appeals are normally subject to fast-tracking procedures, so that they can be removed promptly once a decision has been made on their case.

Safeguards are of course in place. Asylum claims from those entitled to reside in countries designated under the 2002 Act continue to be considered fully, and they are determined on their individual merits in the normal way.

Mr. Mark Oaten (Winchester) (LD): I am interested to know how many appeals have been submitted from countries on the white list and how many have been successful. The assumption is that, because the Government put a lot of faith in the white list, it is hard to make a case. It would be interesting to know how many have tested that assumption and been successful.

Mr. Browne: I am grateful to the hon. Member for Winchester (Mr. Oaten) for raising that point and I will endeavour to provide the information that he seeks before we conclude the debate. If I cannot, I will provide it later, but I am confident that I can be of some help before we conclude.

We take particular care to make sure that initial decisions on applications from designated states are correct, for the reasons articulated by the hon. Member for Winchester concerning the consequences of a refusal. All decisions are made by staff who have undergone specific additional training and who have been accredited to make such decisions. Each and every decision is approved by a trained senior caseworker before being served. Those safeguards are in addition to those in place for claims that are not from designated countries. Although certified cases do not have an in-country right of appeal, as a further failsafe in the process, individuals whose claims are certified can seek judicial review of the certification if they believe that their case was incorrectly certified. Their removal is suspended until the judicial review claim is determined. Those arrangements have worked well and I hope that the Committee will be persuaded of that as I develop my argument.

Why are we now adding India to the list? We believe that it meets the legal test set out in the 2002 Act, but we also have considered the country information and the statistical evidence, which shows that there is a disproportionately high number of applications and that few claims are granted asylum. We want to maintain a steady, managed expansion of the use of the non-suspensive appeal powers, which are proving to be an important and effective way of reducing unfounded asylum claims. Before discussing the specifics of India, I want to say a few words about the overall impact of the NSA powers so far.

The implementation and gradual expansion of the NSA provisions has had a big impact and has resulted in a significant cut in the number of asylum applicants from designated countries. The provisions have proved effective in reducing unfounded claims, and they are an important tool that we can use in conjunction with other measures to tackle abuse of the asylum system.

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The intake of new applications from the countries designated in the 2002 Act—the 10 EU accession countries—fell by 86 per cent. during the first six months in which the provisions were in place, and by 93 per cent. during the first year. Between October 2002, when the powers were introduced, and April 2004, when the countries concerned became members of the EU and the NSA designation effectively ended, intake fell by 97 per cent. That should be compared with an overall fall in intake of about 70 per cent. during the same period.

Intake from the countries designated by the first order—Albania, Bulgaria, Jamaica, Macedonia, Moldova, Romania and Serbia and Montenegro—which came into effect on 1 April 2003, fell by 67 per cent. from March 2003 to September 2004. That should be compared with an overall fall in intake of 31 per cent. during the same period. There was a similar significant fall in intake from the countries designated by the second order, which came into effect on 22 July 2003. Intake from Bangladesh, Bolivia, Brazil, Ecuador, Sri Lanka, South Africa and Ukraine fell by 47 per cent. from June 2003 to September 2004. The overall intake during that period fell by 15 per cent. Those figures show clearly how effective the NSA powers are and that they are making a significant contribution to our asylum strategy.

Only one legal challenge to the designation of a country for non-suspensive appeals has reached substantive hearing in the courts. We are awaiting High Court judgment on a legal challenge to the designation of Bangladesh, which has been made primarily on the basis of the treatment of women and children and political and religious minorities. The challenge, if successful, is sufficiently significant to mean that, in general, that country cannot be considered as meeting the legal test. If necessary we will review Bangladesh’s position when the High Court’s judgment is handed down. But in any event, in the context of asylum and human rights claims, if a given country is safe or otherwise for a particular group or groups, that does not mean that another country is unsafe.

Let me now deal with India. The legal test that must be met is set out in section 94 of the 2002 Act, which contains a provision adding countries to the list by affirmative order, but only if the Secretary of State is satisfied that

      “(a)   there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

      (b)   removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Human Rights Convention.”

We believe that India meets the test. We are generally satisfied that there is no serious risk of persecution and that removal of an individual to that country would not breach the United Kingdom’s convention obligations. However, we are not saying that India or any of the other 14 countries on the list is entirely safe for everyone—no country would meet that test—but we are saying that those countries are safe for most people.

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India has signed and ratified all six core UN human rights treaties, except the convention against torture, which has been signed but not yet ratified. It has a democratic, parliamentary system of government with representatives elected in multi-party elections. Its constitution provides citizens with the right to change their Government peacefully, and they do so. Its citizens exercise that right in practice through periodic free and fair elections, held on the basis of universal suffrage. Its constitution also provides for an independent judiciary.

We looked carefully at the status and treatment of women in India. Many laws exist there to protect women’s rights, and we decided to designate India only following a specific fact-finding mission there to gather further information. We found that options for redress are generally available when needed.

Mr. Oaten: The Minister is making a strong case for the improvements that have taken place in India. In considering whether to change India’s status, has the Home Office also examined the number of successful applications for asylum from India in the past four or five years? I would assume that there has been almost none, or certainly a steady decline.

Mr. Browne: I am grateful to the hon. Gentleman for that question because it relates to my argument. The order in which I intend to present my argument requires me to occupy the Committee with another matter for a couple of minutes more before coming to that point. But since my argument has been interrupted, I shall take this opportunity to tell the hon. Gentleman that of the several hundred out-of-country appeals lodged, there have been three successful appeals on non-suspensive appeal cases. There is no reason to believe that it is difficult to pursue an appeal from abroad. The low appeal success rate indicates the care with which we reach a decision on those certified cases, and it sustains our view that they are dealt with appropriately.

Given the understandable concern that exists, which the Committee doubtless shares, about the position of women in India, I have explained the steps that we have taken to investigate their position.

I turn to another matter that may be exercising Committee members’ minds—Jammu and Kashmir, to which we also had regard. It is accepted that conditions there are not perfect and that some human rights abuses by armed groups have persisted. But since the India-Pakistan peace initiatives in 2003, there has, according to reports, been a marked decline in violence in that area. We took the view that India as a whole, taking into account conditions in Jammu and Kashmir, meets the test for designation.

As I have said, inclusion on the list reflects a general level of safety, not a total absence of any mistreatment. That is why we continue to give every asylum or human rights claim from a resident of a designated country full consideration on its individual merits. Anyone found to have a well-founded fear of persecution would continue to receive protection in the United Kingdom. A claim would not be refused or
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certified as clearly unfounded unless we were fully satisfied after individual consideration that it fell to be refused and certified.

Let me say some more about our country information material on India. As the Committee knows—indeed, this issue exercised it during consideration of previous orders under this statutory provision—in 2003 we set up the independent advisory panel on country information. The panel’s purpose is to provide rigorous external scrutiny of country information material produced by the Home Office, and to make recommendations to help ensure that it is of the highest quality. The panel is working effectively, and such work has resulted in the introduction of a range of measures to improve the way in which the material is produced. These measures have already led to a widely acknowledged improvement in the quality and presentation of Home Office country information material—an improvement that I hope will continue during my time as Minister, and beyond as matters progress.

We gave a commitment to consult the independent advisory panel on country information on the information being used by the Government before making an order to add a country to the non-suspensive appeals list. For the reasons given, we were unable to fulfil that commitment in the context of previous orders or of the two other orders to which I referred, but we have done so with India. That was our first opportunity since the panel’s creation in September 2003 to consult it about the country information of a country proposed for designation before the laying of a draft order.

The panel’s role in connection with non-suspensive appeals is not to comment on the proposal to designate a particular country, which is the responsibility of the Government and of Parliament, but to examine our country material and to provide advice on its accuracy and objectivity. It has done so and in order to assist the Committee in this process, it held an extraordinary meeting on 7 December 2004 to consider the country information on India: the Home Office’s October 2004 country report, and the report of the fact-finding mission to India on the position of women. Both documents are published on the Home Office website. The minutes of the panel meeting have also now been published on its website, along with all the relevant papers.

The panel had a few concerns about the way in which the country report was structured, but it concluded that it was generally a fair reflection of the position in India. The panel said of the fact-finding mission’s report that the relevant information was included in it, but in the interests of the fullness of reporting I should point out that it was suggested that it could have been presented more accessibly. Leaving aside those points about presentation, the independent advisory panel found that our country information on India was essentially sound.

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The other main consideration in deciding to designate India is the statistical evidence. I want to make a few remarks about the question posed by the hon. Member for Winchester before I conclude. The number of asylum and human rights applications made by Indians in the UK is high and is not consistent with what is known about conditions in the country. The asylum statistics published in November last year showed that India was the eighth highest application nation—higher even than countries such as Sudan and Afghanistan.

Very few claims made by Indians are granted. Less than 1 per cent. of Indian asylum applications were granted at initial decision in 2003, and less than 1 per cent. were granted in the first nine months of 2004, the latest period for which statistics are available. In 2003, excluding dependants, there were 2,290 asylum claims from Indians and 2,335 initial decisions were taken. Of those, there were only 10 grants of asylum. For the first nine months of 2004, excluding dependants, there were 1,095 claims and 1,220 initial decisions; there were only one or two grants of asylum. I hope that the point is not lost on the Committee that we are making more decisions than the number of applications that we are receiving. In both years, less than 5 per cent. of appeals were successful, which is a significantly high success rate in defending those decisions at appeal. In fact, the figure for 2003 was 3 per cent. and for the first nine months of 2004 it was 1 per cent.

Those figures show that the great majority of people from India who apply for asylum are not at any serious risk of persecution or serious human rights abuses. Designating a country for non-suspensive appeals provides a strong disincentive for people with no genuine protection needs who are misusing the asylum process, and who are simply using the system to frustrate their removal from the UK.

Mr. Oaten: Those figures are convincing. Is there any information on whether the 10 genuine cases, which have been approved, were from Kashmir? Such information might indicate that we should treat at least that region differently in the future, albeit accepting the arguments that are being made about India.

Mr. Browne: I cannot give the hon. Gentleman that information and I am not sure that it could be done without incurring disproportionate cost, as they say. I am not sure that the information is collated in that way. To be candid, it would not be my priority for the people who do that work to collect that information, although as numbers are going down quite significantly, we are becoming much more sophisticated in the information that we can gather. That information is also helpful for the deployment of resources for training and other purposes. However, the care that is taken with Indian cases is such that he can be assured that, if people come from that part of India and have legitimate claims, those claims will be granted by this process. If there was a process of dismissing claims because those claiming were Indian, there would not be 10 cases. With those numbers, we
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ought to be able to pay particular attention to certain types of cases, which I would expect case workers to do in any event. The country information that they are working from, which now has some support from the independent advisory panel on country information, suggests that we are in fact applying that level of discretion.

Designating countries for non-suspensive appeals helps deal with that abuse. In turn, that leads to enhanced public confidence in the overall asylum system, a reduction in intake, a speeding up of the process and a consequent releasing of resources that can be used to improve performance in other areas. The order, which adds India to the list of designated countries, is both reasonable and sensible. Accordingly, I commend it to the Committee.

2.51 pm

Mr. Humfrey Malins (Woking) (Con): I begin by welcoming you to the Chair, Mr. O’Brien and by thanking the Minister for the helpful and full way in which he introduced the order. We all associate ourselves with his observations about the tsunami. As the Minister said, the order is the latest in a series of designated states orders following the 2002 Act. I remember the previous debates well.

In a sense, this order is simpler because it adds India, and only India, to the list of designated countries in section 94. The Minister deems India to be generally safe in the context of asylum and human rights claims. It was interesting to hear the Minister say that India ranked eighth in the table of asylum applicants. Perhaps unsurprisingly, in 2003 only one in more than 2,000 applications for asylum was granted. So, we on the Conservative Benches understand why the measure has been brought before us. We do not object and we will certainly not vote against it.

The Minister rightly pointed out that before such a measure can be introduced, two relevant tests must be passed with regard to India. The first is that there is no serious risk of persecution of individuals entitled to reside in India; the second is that removal to India, or part of it, of persons entitled to reside there will not in general contravene the UK’s obligations.

It might be helpful to probe the Minister further on the matter. We readily understand why he has brought the measure before us, but presumably there was some impediment to doing so a year or two ago, or the order would have been brought forward earlier. Are there specific changes in India or in circumstances generally that make India an appropriate country to put on the list at this stage as opposed to two years ago, a year ago or in a year’s time? I would be interested to hear a little more detail from the Minister on that.

The advisory panel on country information is a helpful body. I remember pressing the Minister about the independent documentation centre in previous debates on asylum measures in various Bills and Acts.

What about India? The Minister has been helpful in explaining the background to the decision and his comments about India and parts of the country, which is undoubtedly a great democracy. It is undoubtedly generally safe, but the Minister was right to say that no
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country is completely safe. I hope to probe him a bit more on that issue, because there are reports of human rights abuses, some of which, it is alleged, are committed by state and central Government.

The Minister was right to mention Kashmir, a country for which I have a particular affinity. Many of my constituents from Woking originate from a town in Kashmir called Mirpur. Many of them still visit it. On my last visit, people in the high street of Mirpur said, “Hello, Mr. Malins. I live in Boundary road, Woking. What are you doing here?”

There are constant links between that area and my constituency, and many of my constituents have a strong Kashmiri background. I was privileged to be one of the founding members of the all-party group on Kashmir. I have seen Kashmir and know about the human rights breaches and severe problems that have existed there for many years, and about the constant struggle of the people of Kashmir for the right of self-determination, which I support.

It is plain that one’s safety in an area depends on where they live or, perhaps, their attitudes to political life. I would like the Minister to nod to confirm that he stressed that every case is considered on its merits.

Mr. Browne indicated assent.

Mr. Malins: He was right to stress that. I would not want anyone to think—not that they necessarily would—that India in total is utterly safe. No country can be.

Before I conclude, I wish to refer the Minister to a couple of reports that are worth reading. I shall do no more than quote quite briefly from them. I had contact from the United Nations High Commissioner for Refugees at Millbank tower a little while ago. UNHCR wanted to share with the Standing Committee an annex that included its views on the Home Office report that was the basis for the determination on India. UNHCR produced an interesting document, which I am sure the Minister’s officials have seen and have worked on. It is a constructive contribution to the debate, and said that

    “the overall tone of the report on India (and to a degree the fact finding mission on women) suggests generalizations which are too sweeping, especially if used to make decisions beyond the assessment of credibility during a status determination procedure for which they are intended.”

UNHCR said that it

    “agrees that while the situation in the Punjab has indeed fundamentally changed to the better (and many asylum-seekers abroad have been Sikhs), the situation in Kashmir results in regular problems.”

It referred to women and said that dowry cases, and the problems raised by them, are numerous. At a later stage in its short report, it states that

    “the situation in India is complex”

and that

    “there are still a number of lapses in key human rights areas.”

It refers to

    “arbitrary and prolonged detentions, custodial deaths, disappearances in Kashmir”.
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It is right to do so, adding as it does that

    “Kashmir in particular has been singled out for these violations pursuant to internationally recognized standards even though it is reported that the situation is steadily improving.”

The UNHCR’s Department of International Protection is a respected body. I am sure that the Government will have taken into account all that it said.

Moving from one respected body to another, I regret that the latest report that I have about India from Amnesty International covers only the period January to December 2003. I do not have the latest information. However, at that stage, Amnesty International referred to

    “concern at the erosion of human rights protections in the context of “anti-terrorism” measures against armed political groups, and continuing communal tensions.”

It referred, as have many others, to

    “discrimination against vulnerable groups - including women, religious minorities”.

It has produced an excellent report. Admittedly, my copy is a rather old one.

I would like the Minister to confirm what I am sure is true; namely, that the Government have a great deal of respect for Amnesty International and that, whenever they make decisions of this sort, they take into account the respected views that are put forward by bodies such as Amnesty International as well as their own body, which reports to them.

I understand exactly why the Minister has introduced the measure today. I have probed him on one or two issues about why it is being done now, as opposed to a year or two ago, and I have drawn his attention, which did not need drawing, to problems raised by UNHCR, Amnesty International and others about the situation in Kashmir as well as other parts of India. I also stressed what needs no stressing; namely that the Government must be extremely vigilant at all times and treat every single application on its merits.

3 pm

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Prepared 9 February 2005