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Session 2006 - 07
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Public Bill Committee Debates

Draft Asylum (Designated States) Order 2007

The Committee consisted of the following Members:

Chairman: Mr. Roger Gale
Blunt, Mr. Crispin (Reigate) (Con)
Byrne, Mr. Liam (Minister of State, Home Department)
Campbell, Mr. Alan (Lord Commissioner of Her Majesty's Treasury)
Chaytor, Mr. David (Bury, North) (Lab)
Clegg, Mr. Nick (Sheffield, Hallam) (LD)
Cox, Mr. Geoffrey (Torridge and West Devon) (Con)
Curry, Mr. David (Skipton and Ripon) (Con)
Farron, Tim (Westmorland and Lonsdale) (LD)
Gardiner, Barry (Brent, North) (Lab)
Green, Damian (Ashford) (Con)
Gwynne, Andrew (Denton and Reddish) (Lab)
Keen, Alan (Feltham and Heston) (Lab/Co-op)
Lucas, Ian (Wrexham) (Lab)
Morley, Mr. Elliot (Scunthorpe) (Lab)
Simpson, Alan (Nottingham, South) (Lab)
Southworth, Helen (Warrington, South) (Lab)
Whittingdale, Mr. John (Maldon and East Chelmsford) (Con)
Mark Etherton, Committee Clerk
† attended the Committee

Twelfth Delegated Legislation Committee

Monday 23 July 2007

[Mr. Roger Gale in the Chair]

Draft Asylum (Designated States) Order 2007

4.30 pm
The Minister of State, Home Department (Mr. Liam Byrne): I beg to move,
That the Committee has considered the draft Asylum (Designated States) Order 2007.
The number of people seeking asylum is now at its lowest level since 1993. That has not happened by accident, but because we are considering such claims much faster. Indeed, about 40 per cent. of them are now considered and they are either granted or people are removed within six months. We are removing more of them. Last year was the first time for many years when we removed more people making unfounded claims than came into the country—the so-called tipping point. Moreover, by exporting our border controls abroad, we are now stopping bogus asylum claims from people making unfounded claims here. In fact, about 17,000 people were stopped at the other side of the channel because of the controls that we have put in place. We are now turning back the equivalent of about two jumbo jets a week from airports throughout the world.
An important part of ensuring that the asylum system is fit for the future and preserves our proud tradition of providing humanitarian protection for refugees means that the system must be kept up to date constantly, and that is the subject of the order. We are laying it under the terms of the Nationality, Immigration and Asylum Act 2002, which provides for orders by which we can designate some countries as non-suspensive appeal countries. It means, in effect, that when a person’s asylum claim has been reviewed and deemed to be unfounded, it can be clearly certified and the individual can then be removed back to their home country. If the person wants to appeal against the judgment, they can undertake the appeal from abroad.
At the time, there was a degree of consensus about the Act and the hon. Member for Woking (Mr. Malins), who was representing the Conservative party when it was being discussed, was reported in Hansard as saying that he had no objection in principle to its clauses, obviously reserving the right to scrutinise the orders as they were provided. We are now providing the fifth such order under the Act. The orders seem to have been working very well.
Let us consider the intake from countries that were designated under the 2002 Act. Claims from those countries fell by about 86 per cent. over the first six months since its provisions were in place. When we updated the list on 1 April 2003, claims from the countries that we had designated then fell again by 86 per cent. in the following period. When we updated the list on 23 July 2003, the intake from the countries so designated fell by 61 per cent. When we designated India, intake fell by 52 per cent., and when we updated the list in 2005, intake from designated countries fell by 34 per cent. As the Committee will see, those figures show an important part of our reforms to the asylum system.
To designate new countries, legal tests have to be met. In particular, the Home Secretary must be satisfied that she is comfortable that, in general, in that state or part thereof, no serious risk of persecution of persons entitled to reside there exists. Removal to that state or to the part that is designated means that individuals can reside there in a way that is not in general contravention of the United Kingdom’s obligations under the human rights convention.
This afternoon, I propose almost to double the list of countries that are designated as NSA countries by adding Bosnia and Herzegovina, Mauritius, Montenegro, Peru, Serbia and—for men only—Sierra Leone, the Gambia, Kenya, Liberia, Malawi and Mali. The reason why we are adding those countries is that there were about 400 asylum claims from them in 2005, 300 in 2006 and 70 in the first quarter alone of 2007. The Home Secretary has satisfied herself that it is appropriate for such countries to be subject to such designation, and I commend the order to the Committee.
4.34 pm
Damian Green (Ashford) (Con): It is always a pleasure to serve under your chairmanship, Mr. Gale.
I wish to make two general and one specific points. The general points relate to the Minister’s introductory remarks. First, absurdly, he claimed that the reduction of the number of asylum claimants was because of his own efforts, but it is largely due to the fact that, thankfully, there are no wars in the Balkans, so there is less demand for asylum in Europe. That is a wholly beneficial development, but for the Government to claim the credit for their immigration policy is absurd.
Secondly, my hon. Friend the Member for Woking was right when, in 2002, he said that we had no objection in principle to the creation of the type of list contained in the order. Indeed, the previous Conservative Government made such lists. They were much criticised, and abolished, by the Labour Government, which then had to reinstate them after a few years having realised their error. However, we welcome repentant sinners, and if the Minister wishes to say that he is pleased that the Government have reversed their original policy, who am I to gainsay him?
As I said, the official Opposition have no objection to the type of list contained in the order, but it would be sensible for the House to scrutinise in detail the countries that are being added to ensure that tradition—we always mention in these debates that Britain has a good history of welcoming genuine refugees—is maintained.
I have checked what the Government think of the various countries that the order will add to the list. The Foreign Office website features country profiles in which reservations are expressed about a number of the countries in the order. I agree with the Minister, however, that none of the reservations would necessarily preclude a country being added to the list, particularly as the list stipulates the countries to which the measure will apply for men only—clearly, there might be problems with returning to those countries women asylum seekers whose application has failed.
I ask the Minister, however, to address the problem of the Gambia. The Foreign Office country profile states:
“The Gambia has suffered from a poor human rights record since the change of regime in 1994. Both the commonwealth and the EU have been vocal in their condemnation of these problems...The media has come under sustained pressure through prosecutions for sedition and criminal libel and frequently successful attempts by government to close down organs of the independent or opposition press. Physical attacks on journalists are frequent and are not properly investigated...Following the apparent coup of April 2006, many of those arrested have been detained without access to lawyers or international organisations, and well beyond the 72 hours allowed by law.”
The fact that that is the Foreign office analysis is serious, as is the question of whether we can be absolutely confident that the Gambia is the sort of country to which we should return failed asylum seekers. We welcome the principle of the list, but will the Minister address those specific and genuine concerns?
4.38 pm
Mr. Nick Clegg (Sheffield, Hallam) (LD): I am afraid that I have serious reservations about the list of countries included in the measure. Like the Minister and the Conservative spokesman, we have no objections to the concept in the 2002 Act that countries may be designated white-list countries, which means that claimants from those countries must be certified as making clearly unfounded claims before they can be returned. As such, they would have no in-country right of appeal against the refusal of their claim. I have no problem with the mechanism, but I have serious problems with the inclusion of the countries in the measure on two grounds.
First, simply, too much information is available about conditions in the countries to suggest that concerns about those conditions can be swept under the carpet and ignored, and so allow the countries on to the white list. The US State Department remains concerned. A report published last year stated that in Bosnia-Herzegovina,
“ethnically motivated religious violence was often directed at ethnic symbols, clerics and religious buildings.”
The same report also revealed that the previous year had seen an increasing trend of women and girls being used in sex trafficking.
We know from well authenticated reports, that the Kenyan Government—Kenya is another country on the list—have failed to investigate credible allegations of police brutality and torture. More than 10,000 people have been forcibly evicted from their homes in the past few months.
In Malawi, another country on the list, nearly 1 million people required food aid, and yet all men eligible for residence in Malawi will be added to the white list. The horrendous conditions in the prisons in Malawi are worsening. The number of prisoners dying every month has nearly doubled over the year. I could go on, but those facts alone should surely be enough to give us pause to reflect.
I am not suggesting that people from those countries who make false claims should not be refused asylum and returned to those countries. We need to retain a system in which there is close case-by-case scrutiny of all claimants from those countries where that is justified. Whatever the legal niceties of the provisions, the effect will be to give a much greater automaticity unless, in exceptional circumstances, the Home Secretary rules that claims for asylum from those countries are “clearly unfounded”.
If I had strongly held reservations on the basis of the information that I have received about conditions in those countries, those reservations have been made all the more concrete by the rate of appeals that have been made and won by claimants in recent years. In 2005, about 45 men appealed successfully against Home Office decisions denying them asylum from countries that will today—if this measure goes ahead—be added to the white list. If we go back to 2004, no fewer than 485 individuals from those countries had successful appeals after their initial applications were rejected. From Serbia and Montenegro alone, more than 1,300 appeals have been accepted over the past four years.
It seems to me that there is a profound illogicality in considering appeals for asylum from those countries in recent years, seeing those appeals granted and now depriving people in those countries of the mechanism to continue making those appeals. For example, given that more than 1,000 appeals from Serbia and Montenegro were successfully made in the United Kingdom a few months ago, will the Minister explain how conditions have changed so radically and rapidly not to continue to grant the country individual rights of appeal?
My hon. Friend the Member for Westmorland and Lonsdale has just passed me a note confirming that trend. In 2005 alone, 25 appeals were allowed from Liberia, 20 from Kenya and 30 from Sierra Leone. I hope that the Minister agrees that such figures merit a thorough response from him.
As much as I respect the Minister for the work that he does, I was surprised to hear that his opening comments this afternoon were all about numbers. The equivalent of what number of jumbo jets has been sent back? He knows as well as I do that, by definition, a fair, efficient, effective asylum policy is not a numbers game. The system works and conforms to our international obligation only if it detects those claims that are unfounded and deals speedily with them, but extends compassion and humanity towards those who are genuinely fleeing persecution.
That basic premise—a case-by-case process in which one tries to weed out unfounded from well-founded asylum claims—seems to me to be the cornerstone of a fair and efficient asylum system. That cornerstone is significantly weakened if countries are introduced on to the white list without absolute certainty that conditions in the relevant countries have dramatically changed.
The objective of further improvements to asylum policy should not be a continued preoccupation with absolute numbers; it should be to ensure that the appeals process—and, by that, I include the process in this country—is as effective, independent and fair as possible, so that appeals are dealt with speedily and fairly. We should not try to bypass appeals altogether by depriving large numbers of claimants of the right to appeal in this country in the first place. On that basis, my party will seek to divide the Committee and will vote against the measure.
4.46 pm
Mr. Byrne: I am grateful for the contributions of hon. Members to this afternoon’s debate. I know that there has been a degree of controversy about certain aspects of the policy’s past presentation. It is important, however, to focus precisely on the legal test at the heart of the measure. By designating a country under the terms of the Nationality, Immigration and Asylum Act 2002, the Government are not saying that there is a complete absence of any risk of persecution in that country; we are saying that in general there is no serious persecution risk and that removal would not breach any obligations under the European convention on human rights.
A number of important tests must be met before any individual reaches the point at which their claim is designated as completely unfounded. The most important of those tests is that each case continues to be inspected and examined on its individual merits. The individual goes through the asylum process and benefits from a full consideration of their particular circumstances, and the mere fact that somebody is from a country on the list provided for under the Act does not mean that there is any weakening in the review of their case. If anything, there is a strengthening of it, because the board of the immigration authority recognises the need for the most robust possible oversight in cases from this country that might be designated as clearly unfounded.
There are two further safeguards. The first is that individuals can always apply for judicial review of the decision—although the fact that few people apply is, I think, a sign that the policy is healthy. The second, as the hon. Member for Sheffield, Hallam observed, is that people can lodge an appeal from abroad, and the examples he gave were good examples of individuals doing that. That appeal right is not removed, eliminated or rendered defunct; it is still alive as a possibility. The fact that people can make that kind of appeal under the legislation shows, in fact, that the process is robust. I did not quite understand the point that was made about Kenya and Liberia. They are not yet on the list; they are the subject of the order before us.
The key point is that the legal test that must be satisfied for the purposes of the Act is whether conditions in general are safe enough. If persecution or human rights breaches were endemic or widespread, that test would not be met. That is an important part of the evidence that is taken into account when the review is undertaken.
The hon. Member for Ashford spoke about the Gambia in particular. We are proposing only a partial designation for that country—for men only. We recognise that the designation test is not met for women from the Gambia because of issues surrounding female genital mutilation, domestic violence and forced marriages. We are aware that there are issues around certain actions of the security forces, treatment of opposition party members, treatment of gay men, and restrictions on media activities. However, that underlines the fact that each individual’s case should be judged on its particular merits. They must have recourse to judicial review if they seek it, and they should be able to lodge an appeal from their own country if they seek to do so.
Some important considerations in respect of Bosnia and Herzegovina, for example, are that methods of redress are generally available to victims of abuses, police standards units are effective in investigating police abuses, and the Bosnian judiciary is generally independent. In the case of Malawi, which was specifically raised by the hon. Member for Sheffield, Hallam, we propose only a partial designation. Some of the issues around the treatment of women in that country are similar to those in the Gambia, which I quoted a moment ago, but, in general terms, the police are willing and able to offer sufficient protection. The Malawi Government have taken forward much of that work as well as work to combat child labour and child trafficking. I am satisfied that the tests in the legislation have been met for each of the countries that the order proposes be given a full or partial designation.
My final point is that any country that goes on the list is kept under constant review. If we believe that conditions in a country are deteriorating to such an extent that we are no longer in our own minds able to satisfy the legal test that is set out in the legislation, we will not hesitate to take the country off the list. That is precisely what we did in the case of Sri Lanka. There was a general view that conditions were deteriorating, particularly in the north of the country, and that is why in December 2006 we took it off the NSA list of designated countries.
The process of constant review is important but it is no substitute for the safeguards that asylum claimants have in this country for individual review of their case, and recourse to the judicial system even before the appeal stage is reached. As those protections are in place, I hope that the Committee will achieve unanimity this afternoon.
Question put:—
The Committee divided: Ayes 7, Noes 2.
Division No. 1 ]
Byrne, Mr. Liam
Campbell, Mr. Alan
Chaytor, Mr. David
Gardiner, Barry
Keen, Alan
Lucas, Ian
Simpson, Alan
Clegg, Mr. Nick
Farron, Tim
Question accordingly agreed to.
That the Committee has considered the draft Asylum (Designated States) Order 2007.
Committee rose at seven minutes to Five o’clock.

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