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Delegated Legislation Committee Debates

Draft Asylum (Designated States) Order 2010



The Committee consisted of the following Members:

Chairman: Jim Sheridan
Atkins, Charlotte (Staffordshire, Moorlands) (Lab)
Burgon, Colin (Elmet) (Lab)
Burns, Mr. Simon (West Chelmsford) (Con)
Green, Damian (Ashford) (Con)
Hemming, John (Birmingham, Yardley) (LD)
Hollobone, Mr. Philip (Kettering) (Con)
Holloway, Mr. Adam (Gravesham) (Con)
Huhne, Chris (Eastleigh) (LD)
Jenkin, Mr. Bernard (North Essex) (Con)
Ladyman, Dr. Stephen (South Thanet) (Lab)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
McGovern, Mr. Jim (Dundee, West) (Lab)
Marsden, Mr. Gordon (Blackpool, South) (Lab)
Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
Whitehead, Dr. Alan (Southampton, Test) (Lab)
Woolas, Mr. Phil (Minister for Borders and Immigration)
Eliot Wilson, Committee Clerk
† attended the Committee

Second Delegated Legislation Committee

Monday 25 January 2010

[Jim Sheridan in the Chair]

Draft Asylum (Designated States) Order 2010

4.30 pm
The Minister for Borders and Immigration (Mr. Phil Woolas): I beg to move,
That the Committee has considered the draft Asylum (Designated States) Order 2010.
The order was laid in draft before the House on 6 January. It is now the sixth order adding countries to the list of those to which the non-suspensive appeal provisions under section 94 of the National, Immigration and Asylum Act 2002 apply. At the moment, 24 countries are on that list. The order would add a further two: the Republics of South Korea and Kosovo. The latter is a technical amendment because Kosovo was previously designated, it being a province of Serbia in 2003 when the list was introduced. It is now being added separately in its own right since it achieved independence on 17 February 2008.
I wish to explain non-suspensive appeals provisions. The general position is that unsuccessful asylum claims or, indeed, article 8 human rights claims under immigration law have a right to appeal to the Asylum and Immigration Tribunal. Until the appeal has been determined, all action to enforce the removal of the claimant from the United Kingdom is suspended. However, section 94 of the Nationality, Immigration and Asylum Act 2002 made provision for a certification process under which removal action is not suspended, hence non-suspensive action when asylum or such human rights claims are clearly unfounded. The definition of “clearly unfounded” is based on a House of Lords judgment in 2002. Such a claim is one that is so clearly without substance that it is bound to fail, even if we accept all aspects of a person’s claim that they would not qualify as a refugee.
Let me turn to non-suspensive designation. In cases when the application is clearly unfounded, we can deport someone and they are entitled to an appeal from overseas. In the case of the designated country under the NSA list, the legislation allows us to add a country to the list if we are satisfied that there is, in general, no serious risk of persecution of persons entitled to reside there and that removal to that country of persons will not, in general, breach the UK’s obligations under the European convention on human rights. To reassure the Committee, I want to say that each case is dealt with on a case-by-case basis. It is possible to be granted asylum from a country that is on the list.
In assessing whether a particular country meets the test for designation, we do not base our judgment on the number of applications received from people of that country nor on the percentage of those applications that are unsuccessful. We consider the general conditions for the population of the country itself. Broadly speaking, we would look to see what evidence there is of persecution of human rights breaches within a country and how widespread such treatment is. We are satisfied that the proposed designations in the draft order meet the legal test.
I should have thought that the Committee would have been surprised that South Korea was not on the list. It takes resources and capacity to go through each country properly. We have now done that. The number of asylum claims from South Korea is, in real terms, relatively low; indeed, it is in two figures. None the less it is disproportionately high, given what we know about the situation in South Korea. We have, however, already made significant progress in reforming our systems, and we are confident that we can put South Korea on the list.
4.34 pm
Damian Green (Ashford) (Con): I am grateful to the Minister for his full and thorough explanation of the order. He is right. I suspect that many of us were surprised that South Korea was not already on the list. I am glad that the Government have added it to the list. He should not take it as a precedent, but I have no objections to anything in the order nor, indeed, to anything he has said. As it happens, I had a meeting earlier today with refugee support organisations. They spontaneously brought up Kosovo as the sort of place where they thought it had once been very dangerous to return people, and where it now clearly was not. So there is recognition in the refugee support community that Kosovo is now in the sort of state where it can be added to this list.
I merely observe, in a historical context, that it took about four years to get from suspending the white list of safe countries to passing a law that found a new way of getting us back to a condition where this country can acknowledge that there are certain countries that are essentially safe and people can be returned. Although I take the Minister’s point that every case is taken individually, it is clear that we now have a list of 24 countries to which the British Government officially send a signal that it is safe to return applicants.
Mr. Philip Hollobone (Kettering) (Con): I am listening to my hon. Friend’s comments closely. I do not know the answer to my question, but presumably there are quite a large number of Kosovans who have claimed asylum and who are in the United Kingdom. Is it my hon. Friend’s understanding that those individuals will be invited to return to their country of origin now that it is designated a safe place?
Damian Green: As the Minister said, every case needs to be taken on its merits. There may be individuals who are genuinely under the threat of persecution as defined by the various international conventions to which this country is signed up. I know that my hon. Friend, like me, would feel disturbed at the prospect of retrospective legislation changing the conditions affecting any individual. If an individual had a well-founded fear of persecution, the fact that the British Government are passing an order making it explicitly clear to everyone that we as a country now regard their home country as a safe one may affect their view on the likelihood of danger in returning to their home country. One would hope that would have an effect on some individuals. However, as I said, the Conservatives do not oppose the order.
4.37 pm
John Hemming (Birmingham, Yardley) (LD): Similarly, we have deliberated whether to support this approach and we have it in mind to support it as long as each case is considered on its individual merits and has had such consideration. I personally have had the unusual experience of dealing with people who leave this country because they are persecuted by the family courts here. Normally, they do not claim asylum, because they are in European economic area countries, although one has gone off to the Philippines. There was an interesting case once in which someone claimed asylum from America in Holland, and got it on the basis that they had a well-founded fear of persecution, so it is important to understand that even in established democracies there can be situations where individual cases need individual attention.
South Korea is generally accepted to be a very good country from the human rights point of view. In 2009, the Freedom House report noted that
“the constitution allows for freedom of religion and the government did not enforce any state religion; academic freedom is not restricted (bar statements in support of the North Korean government); there is freedom of association...members of civil society and Non Government Organisations are active and able to operate freely; the judiciary is considered generally independent; and the police though occasionally culpable of verbally and physically abusing detainees are considered well disciplined and un-corrupt.”
To that extent, we have no objection to the addition of South Korea to the white list.
The advantage of having an external body to consider which country should be on the list is that countries such as Kosovo can be considered in detail. In 2008, Human Rights Watch highlighted its concerns that:
“Violence, impunity for common and political crimes, intimidation and discrimination are commonplace.”
It cited four areas of concern:
“The criminal justice system—political and ethnic violence continued to go unpunished.
Roma, Ashkali and Egyptian communities remain marginalised and vulnerable to violence and discrimination.
Kosovo's leadership's failure to adequately investigate 400 plus missing Serbs.
Domestic violence and trafficking of women.”
However, our principle is that there needs to be proper individual consideration of any case; obviously, retrospectivity should not apply. I do not think that there is a major disagreement here.
4.40 pm
Mr. Hollobone: I am always alarmed when I see the Government introduce proposals on immigration, because they are usually ill thought out and seem to open rather than close the door. I am pleased that the order appears to be an exception to that rule. My only disappointment is that only two extra countries are being added to the list. The question that my constituents would ask me is, “Philip, you were at this exciting Committee on Monday. What were they discussing?” I would say, “Immigration.” They would say, “How many countries around the world would fall under this category?” Listening to the Minister’s remarks and trying to make sense of the explanatory notes, it seems that the answer is 24—out of, I believe, 192 nations listed at the United Nations. I am not sure if I have got that correct, but it seems to be an extraordinarily low number of countries where the rule would apply. I would have thought that it should be the other way round—that there are only 24 countries in the world that are so dangerous, to which we do not dare send people back. I am rather alarmed by the low number of countries on the list.
I may have slightly confused my hon. Friend the Member for Ashford with my question earlier, but it seems that most people in this country would feel it to be perfectly reasonable that if someone who sought asylum in this country was from a country such as Kosovo, which we now deem to be safe, and if in the meantime they had not been granted permanent leave to remain, they should be invited to return to that country. After all, British soldiers have fought and died for the right of their country to have proper governance. I do not see why people should enjoy a permanent stay in this country if we have done our level best as a nation to sort out their domestic affairs. I think most people in this country would support a far more robust stance along those lines. Likewise, that should apply to countries such as Iraq.
Mr. Simon Burns (West Chelmsford) (Con): I have had a constituent from Kosovo who was given temporary leave to remain here because of the situation there. It may reassure my hon. Friend to hear that when the situation improved, he was asked to return to Kosovo.
Mr. Hollobone: No doubt he sent my hon. Friend a letter to thank this country for doing its best to sort out Kosovo, because our armed forces have spent a great deal of time and effort, blood and treasure to put that country back on its feet. I am delighted for my hon. Friend’s constituent that he was able to return to a peaceful nation once again.
Mr. Burns: I do not want to upset my hon. Friend, but he did not want to return.
Mr. Hollobone: Well, that is exactly my point, is it not? Many people come to this country, claiming asylum. They claim that they are fleeing persecution and that they would rather not be here, only that circumstances meant that this was the only country in the world to which they could find their way that would offer them asylum.
I am not aware of direct flights between Kosovo and Heathrow—there may be some, but I would be surprised if there were. Therefore, my hon. Friend’s constituent would have had to make his way to this country via some other western European nation. I think most people in this country would ask, “Why did he not claim asylum at his first port of call? Why is he claiming asylum in this country?” The answer is, because we are a soft touch; we have an open door to asylum seekers from all over the world. Potential asylum seekers know that, which is why the UK, particularly London, is at the top of everyone’s list to get to to claim asylum. Of course, one of the reasons for that is that London is the largest city in Europe and the most cosmopolitan city in the world. We are creating a perpetual cycle where we have asylum-seeking communities—
The Chairman: Order. The hon. Gentleman is beginning to drift away from the issue that is being debated. Perhaps he would sum up.
Mr. Hollobone: I am most grateful for your helpful advice in bringing me back on track, Mr. Sheridan. My point is, in looking at the order, we have two countries added to a pathetically short list, which the Government should be extending by quite some way. By not extending that list, we are creating asylum-seeker communities in this country, which encourage asylum seeking from perfectly safe countries. Most people in this country think it is time that we became far tougher with bogus asylum seekers. They might be having a hard time in their country of origin; I am not saying that that is not the case, but given the size of our present population and the projections for the next 10 or 20 years, we cannot carry on in such a way. Yes, let us be a genuine safe haven for genuine refugees, but not for everyone who is having a hard time at home.
4.45 pm
Mr. Woolas: Let me try to answer the questions that have been asked. I shall do so in reverse order. The hon. Member for Kettering expressed his concerns. There is no country in the world to which we cannot return a claim that is clearly unfounded. All countries are on that list, and we return regularly to Afghanistan and Iraq. For the past few years, we always have done to Kosovo. We are even allowed to return to Zimbabwe, and a number have been going back. I hope that I have reassured the hon. Gentleman that there is a difference between those countries that we feel it necessary to designate, such as the 24 that I have talked about, and many others where the problem is so small that it almost non-existent. It is possible, of course, that asylum would be claimed in any country in the world, but the numbers from, say, New Zealand, tend to be small.
I can reassure the hon. Gentleman about Kosovo. The latest figures that I have available in anticipation of that question cover January to September 2009. There were 20 applications from Kosovo. There were 20 refusals. For the sake of accuracy, that does not mean necessarily that they were the same 20 people because of the time delay over the calendar year, but that is the sort of number we are dealing with. We have a return flight to Kosovo every month, and our experience is that most people stay on the plane and go to Albania because, in some cases, they turn out not to be Kosovan, but Albanian. The numbers are coming down. Indeed, the asylum claims on the latest figures are at their lowest since 1993. I would not claim wholly, but that is in significant part because of getting on top of the system with the measures that we have.
Mr. Hollobone: Will the Minister clarify the situation with regard to other European Union countries? My understanding is that if someone from Kosovo were to claim asylum in, say, Greece and that individual were to end up in London, we would not be able to return that person to Greece because the United Nations High Commissioner for Refugees does not regard the asylum procedures in Greece—an EU country—as sufficiently robust for us to return people there.
Mr. Woolas: I can reassure the hon. Gentleman on that point, too. He said that we have become a soft touch. France has more asylum claims than the United Kingdom. Per capita, the United Kingdom is 13th within the European Union of the 27 countries. Of course, we are a bigger country than most so there are greater numbers, but there are more in France owing to historic links with French colonies and for other reasons.
I agree with the hon. Gentleman that there is a huge difference between the right to flee persecution and the right to settle in the United Kingdom. The two issues are often confused. That is why the Dublin agreement within the European Union does indeed allow a person to be returned to their first port of call. If people claimed asylum in Greece but ended up in London, we return people to Greece and all other European Union countries. We, indeed, are the major beneficiary of the Dublin II agreement because we are, along with Sweden, a final destination on those routes.
The hon. Gentleman is referring to the reports of a challenge to the ability to return, in particular, to Greece, which have not been founded. In answer to his political point, if the hon. Gentleman’s views on the European Union were to be implemented, we would not be allowed to return to Greece, because it would not recognise the mutual agreement. Given that 17 per cent. of EU asylum claims turned out to be duplicate before the Dublin agreement, the problem in this country would be greater.
Mr. Adam Holloway (Gravesham) (Con): A few years ago, I lived in Sangatte refugee camp in Calais to make a television documentary. Since then, the thinking has gone on, albeit not under that roof. On the basis of the Minister’s comments, why has virtually no one who has ever come into Britain through Sangatte been at least sent back to France?
Mr. Woolas: As the hon. Gentleman knows, we work with the French. The French, thankfully because of the agreement, now detain people and have started to remove them. We have joint returns with France now, following the agreement. Of course, the assumption is that the person has claimed asylum in France. The fact that they have not tells me that they are not genuine asylum seekers, because if they were fleeing persecution, they would claim asylum in France—the last time I looked, France was quite a nice place, and is a signatory to the European convention. His point shows that in general—one has to be careful, because there are children involved in Calais—people seeking to get into the UK through Calais are not asylum seekers. Those people are economic migrants, often duped by people traffickers—and sometimes not duped. However, the hon. Gentleman makes a good point.
Finally, the hon. Member for Kettering said that the order was not ill thought out. I am grateful to him for saying that, and I anticipated that if there was a criticism from the Committee, it would be that we have taken too long. My answer was that it shows that we are thorough. I reject the accusation that our other measures are ill thought out.
I am pleased that the Liberal Democrats are supporting the measure. There were reservations when it was introduced in 2007, the last time the matter was debated in Committee.
John Hemming: We remain concerned that each case has an opportunity to be looked at on its own, as I cited examples of people getting refugee status and asylum in Holland from America because they were persecuted. It was an individual case, which we need to look at, but obviously, having a more accelerated case process for countries such as South Korea is sensible.
Mr. Woolas: I am grateful to the hon. Gentleman. I can give an assurance that whatever the designation of the nationality or country of origin, each individual claim for asylum is judged on that individual’s merit. There are cases where the officer, as I say, determines that the case is clearly unfounded. The definition of that comes from a High Court judgment in 2002, where it was deemed that even if all the claims that a person had made were true, it would not be sufficient to grant asylum status. Recently we had the case of a gentleman from China who said that he was seeking asylum because he could not get a job there. Even if that were true, it would not be a reason for granting asylum. In those cases we can deport, and we do so in record numbers. If there is an appeal, they have to do so from overseas, and of course, they currently do not.
However, where it is not a clearly unfounded case, even if it turns out to be untrue, we have to look at those cases again on a case-by-case basis. Then we can deport people, and they have the right to appeal from overseas. To fully answer the point made by the hon. Member for Kettering, the vast majority of the countries of the world are not on the list because the problem does not arise, not because of—if the hon. Member for Birmingham, Yardley will excuse me—any undue liberalism on our part. Presentationally, incidentally, the hon. Member for Kettering has a point.
On that basis, I think that I have answered all the questions. I am grateful to the hon. Member for Ashford for reiterating his support for the principle and the practicality of the order. I perhaps should have mentioned for the record that if someone is coming from North Korea, we have arrangements with the South Koreans, given the particular circumstances.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Asylum (Designated States) Order 2010.
4.55 pm
Committee rose.
 
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