Rights
to appeal and "safe countries"
1.29 Clause 11 of the Bill would extend the power
of the Secretary of State under section 94 of the Nationality,
Immigration and Asylum Act 2002 to certify a human rights or asylum
claim as clearly unfounded, allowing the claimant to be removed
without consideration of the claim on its merits where the Secretary
of State is satisfied that the claimant is entitled to reside
in a "safe country" which appears in a list made by
the Secretary of State by order. The clause would allow the Secretary
of State to make an order specifying a state or part of a state
as "safe" for this purpose for people falling within
a defined description, although not as generally being safe.
1.30 Clause 12 of the Bill, and Schedule 3 to it,
would replace existing provisions for removing asylum seekers
to "safe" countries. The idea behind prescribing certain
countries as "safe" is to allow the Home Secretary to
reject a person's claim as manifestly ill-founded, without looking
at the merits, if it amounts to an allegation that the person
has suffered persecution within the meaning of the Refugee Convention
(an "asylum claim"), or would be in danger of suffering
a violation of his or her Convention rights so that removal to
that country would be unlawful by virtue of section 6 of the Human
Rights Act 1998 (a "human rights claim"), in one of
the prescribed countries. In addition, existing legislation prevents
people from appealing against the rejection of the claim or consequential
decisions until he or she has left the United Kingdom.
1.31 Schedule 3 to the Bill would create a list of
countries which are presumed to be safe for everyone for the purposes
of both the Refugee Convention and the Convention rights under
the ECHR. There are 26 countries on the proposed list. The Secretary
of State would then be empowered to create a second list, by order,
of countries which are presumed to be safe for the purposes of
the Refugee Convention, but not the ECHR rights. That is to say,
people in those countries can be assumed not to have a well-founded
fear of persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinion,
but cannot be assumed to be adequately protected against violation
of their rights under the ECHR. In addition, the Secretary of
State would be empowered to certify that a particular country
which is not on the lists would be safe for a specified person,
so that that person could be removed there.
1.32 The Committee has previously reported on earlier
proposals[21] for lists
of countries which should conclusively be presumed to be safe.
It drew the attention of each House to its view that "the
presumption that a country is safe is of questionable validity",[22]
and that the restriction of any right of appeal against a decision
that a human rights or asylum claim is clearly unfounded until
the claimant has left the country could undesirably weaken legal
protection for the rights of asylum-seekers and human rights claimants.[23]
At that time, there was no proposal to exclude access to judicial
review in immigration and asylum cases. It seems to us that the
threat to the structure of remedies is now even more acute, because
of the proposals in clause 10 of the current Bill.
1.33 We remain of the view, which we expressed
in 2002, that the presumption that a particular country is always
safe for everyone is of questionable validity. We are even more
concerned about the restriction of appeal rights than we were
in 2002, because of the proposals in clause 10 to restrict legal
remedies for unlawful or erroneous decisions. We draw this to
the attention of each House, and expect to report further when
we have received the Government's responses to our questions.
1 Bill 5-EN Back
2
paras 135-143 Back
3
Home Affairs Committee, First Report of 2003-04, Asylum and Immigration
(Treatment of Claimants, etc.) Bill, HC 109. Back
4
See letter from the Chair to the Home Secretary printed as Appendix
1 to this Report. Back
5
See Appendix 1, pp 23-24. Back
6
See Appendix 1, pp 24-25. Back
7
See Appendix 1, pp 25-26. Back
8
See Appendix 1, pp 26-27. Back
9
See Appendix 1, pp 27-29. Back
10
See Appendix 1, p 30. Back
11
See Appendix 1, p 30. Back
12
See Appendix 1, pp 30-31. Back
13
See Appendix 1, pp 31-32. Back
14
See Appendix 1, p 32. Back
15
The Special Immigration Appeal Commission would be unaffected. Back
16
Clause 10(6), introducing a new section 105A to the 2002 Act. Back
17
Proposed new section 108A(1)-(3). Back
18
Proposed new s. 108B of the Nationality, Immigration and Asylum
Act 2002, to be inserted by cl 10(7). Back
19
Explanatory Notes, para. 139. Back
20
(1975) 1 EHRR 524 at § 34 of the judgment. Back
21
In the Nationality, Immigration and Asylum Bill of 2002. Back
22
Twenty-third Report of Session 2001-02, Nationality, Immigration
and Asylum Bill: Further Report, HL Paper 176, HC 1255, paras.
35-37. Back
23
ibid., paras. 30-34, 38-39; Seventeenth Report of Session 2001-02,
Nationality, Immigration and Asylum Bill, HL Paper 132, HC 961,
paras. 93-108. Back