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Lord Dubs moved Amendment No. 34:

Page 3, line 12, after ("territory") insert ("has given an undertaking that it will consider the application and").

The noble Lord said: This is a crucial amendment as regards the principle of Clause 2. Although I accept that one or two of the arguments have already been used in relation to the earlier amendment dealing with victims of torture, I think it is right to state what are the key concerns about Clause 2 as exemplified by the amendment.

The first difficulty is the one I mentioned earlier. Before a third country removal the individual asylum case is not considered substantively. There is therefore a weakness in the procedures and it is possible that a person with a well founded fear of persecution may well be removed. The problem is that there is no assurance that the country to which that individual is removed will itself consider substantively the claim for asylum.

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Indeed, the individual may not be allowed to enter into the procedures at all in the third country to which he or she has been removed.

The UNHCR recognised this difficulty. Perhaps I may quote from a statement it put out in 1993 regarding the then Asylum and Immigration Appeals Bill. It said:

    "Mere assumptions as to the safety of an asylum seeker in the third country cannot be sufficient ground for his removal from the country in which he is requesting asylum".

In a paper commenting on this Bill the UNHCR made the position even clearer. It stated:

    "UNHCR is of the opinion that there can be no automatic or reliable assumption that simply because an asylum seeker passed through another EU state or some other liberal democracy, en route to the United Kingdom, the country is 'safe' against refoulement, whether directly or indirectly ... Because of the current lack of consistency in inter-state practice, and the attendant risk of refoulement, UNHCR is not supportive of unilateral action by states to return asylum seekers to countries through which they have passed, unless the prior agreement of that receiving state is first obtained".

We have two alternative propositions. The first is contained in the Bill in that the Secretary of State has certified that it is his opinion--in other words, he simply has to believe that everything may turn out all right for the asylum seeker. Against that, we have this amendment which says that the country to which the individual is to be removed--that is to say, the safe, third country--has given an undertaking that it will consider the application.

That is surely a crucial difference. All we are asking for is that when there is a removal to a safe, third country it is not the Secretary of State's opinion that that country will consider his application that is sufficient, but that we have some assurance from that country that the individual's application will be considered properly.

I understand that in the other place the Government put forward the objection that this process would take a little time. We are talking about individual human rights. If another government is not willing to give us an assurance that the asylum seeker returned to that country will be allowed to enter into the asylum procedures, then what assurance do we have that fairness will be done to that individual? If the government of the safe, third country is not prepared to confirm to us what the intentions are, how can we possibly risk sending the person back? The danger is that that government in turn may say that the asylum seeker spent a few minutes passing through another safe, third country. That government in turn will pass the individual on and in the end there is no assurance that he will not be sent back to the country from which he originally escaped. These provisions are not confined to European Union countries. So far as I can tell, they can apply to any country and that gives further scope for argument.

I wish to ask the Minister a further question: in the earlier debate on the amendment dealing with torture victims, the Minister said that there was a principle about applying for asylum. Possibly, I tacitly accepted that when I should have talked about the practice of applying for asylum. The noble Baroness mentioned international law. I wonder what is the basis for that

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proposition. It may be a practice that the Government welcome and one that has been adopted for some time by a number of countries on the basis of a lengthy stay in the country before moving on and then the principle of the safe, third country applies. In fact, I do not believe that there is such a principle. I believe that we have used that word as it applies to a practice which governments have adopted. I am really concerned about the way in which Clause 2 will operate. The safeguard in this amendment will give us all some assurance. I beg to move.

Baroness Williams of Crosby: It may be for the convenience of the Committee if I speak to this amendment and then I shall be able to consider saving time on the amendment that is in my name because I believe that the principle is very much the same.

I wish to make three points. The first is that the provisions in the 1993 Act for the suspension of an appeal are being removed under Clause 2 in this Bill. In plain English that means that a person can appeal against being sent to a third country prior to the legislation now before the Committee, and have the right, while the appeal is being considered, not to be sent out of the country. Under the provisions of this Bill, as I understand it, they will be sent out of the country and the only right will be to appeal from the country to which they are sent.

Therefore, the noble Lord, Lord Dubs, and I are asking for an assurance that that appeal will be allowed to proceed in the country to which the asylum seekers are sent before being sent there. If there is no such absolute commitment by the country to which they are sent, it is by definition not for them a safe country because they cannot pursue their appeal in that country, albeit that they may have a right, on the face of the Bill, to do so. It is a non-substantive right.

The second point is that in many cases it would be almost impossible to raise and to maintain an appeal from a third country, even a friendly third country, because of the difficulties of getting advice and counselling on the basis on which to make a successful appeal. It is therefore all the more important to ascertain that that third country will allow that person to proceed through the processes of appeal.

The third point is that it lies with the United Kingdom Government relatively easily to meet the anxieties expressed by the noble Lord, Lord Dubs, and myself. The reason that I say that it should be relatively easy to do that is because, as a result of Her Majesty's Government's own representations, issues concerning intergovernmental co-operation on home affairs and internal security come under the third pillar of the European Union. That third pillar is intergovernmental and is not part of the acquis communautaire. That intergovernmental agreement enables government members of the European Union to agree on how to deal with a number of issues. What could be easier than to persuade them to agree on a successful intergovernmental agreement under the third pillar with regard to entering into assurances about refugees being sent to other European Union countries?

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With respect, it seems to me that the whole clause suffers from the fact that we do not have a safe and certain set of assurances from other EU member states about the handling of genuine asylum seekers. I believe that it would be possible to achieve that under the third pillar. Indeed, we have no other way of dealing with this because there is no European parliamentary accountability for the third pillar, only an intergovernmental one. Therefore, it lies very much with Her Majesty's Government to raise the issue within the third pillar and to try to get a satisfactory set of commitments from other EU states to say that they will allow appeals in their own countries. That seems to be the minimum required to make the Government's assurances about safe third countries into a reality and a certainty. I commend Amendments Nos. 34 and 35 to the Committee.

9.30 p.m.

Lord Hylton: I support the principles of Amendments Nos. 34 and 35. Those of your Lordships who can recall the time of the Cold War and the beginnings of detente will know that there were many cases of people being shuttlecocked from one country to another. They were usually stateless people whom no country would accept. I believe that one man spent many months of his life on a ferry going between Hong Kong and Macau. That is the kind of situation that we wish to avoid. We wish to avoid transfers from Britain to a supposedly safe country, on to other safe countries, and to unsafe countries.

The Minister has implied that it would be possible for those who are removed from Britain to a safe third country, probably in Europe, to conduct their appeal from that third country in our jurisdiction and in our courts. Something has already been said to point out the extreme difficulties of such a procedure. Therefore, if somebody is to be removed to a safe third country, that person needs to be able to get proper advice which is relevant to that country and to conduct the appeal entirely in that country. I support the amendment.

Earl Russell: In days gone by when they used to duck witches, it used to be a principle of the test that a guilty witch would float and an innocent witch would sink. The third country appeal is a bit like that. If the third country is in fact safe, you can prosecute the appeal--I shall not say "perfectly adequately", but you can prosecute it.

However, if the third country is not safe for the particular applicant, you cannot prosecute the appeal. All that can be said when the applicant disappears into God knows where--perhaps a prison in Zaire--is, "We lost him". That is why the undertaking that the third country is prepared to receive the applicant is vital to the process of removal to a safe third country and to third country appeals. Without that, Clauses 2 and 3 are, in my opinion, completely unacceptable.

The noble Lord, Lord Dubs, hit the nail on the head when he pointed out that the key issue was access to the process. This is where the undertakings are needed.

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I should like to quote some observations mainly by UNHCR on European Union countries. Regarding Greece, it was said:

    "Whilst the legal situation and current practice in Greece may not provide wholly satisfactory guarantees that asylum seekers will be readmitted to Greece, UNHCR considers that effective protection could, however, be ensured in specific cases through explicit undertakings by the Greek authorities, expressed for example in bilateral communications between the governments concerned".

That is exactly the procedure that we recommend in this amendment.

Take the case of Italy. In 1993 a Sri Lankan asylum seeker was returned from the United Kingdom to Italy. Italy imprisoned him. He was then sent to Thailand, which is not a signatory to the UN convention. The UNHCR's recommendation was the following:

    "Pending clarification of this incident, I have requested the Home Office not to return asylum seekers to Italy without the necessary safety conditions having been verified with the Italian authorities".

That is the question to which this amendment asks for an answer.

Take the case of France. For example, I refer to the principle that arose in the case of Berdjane. The appellant was returned to France from the United Kingdom on third country grounds. He arrived in France and was asked for his papers. Of course, all of his papers were for admission to the UK. He did not have papers for admission to France because he had not intended to be admitted to that country. He was told that he was an illegal immigrant and could be detained for 24 hours, after which he had to leave France. The Home Office adjudicator who considered that case said:

    "It appears to be the practice that claims are not accepted from illegal entrants who are returned to France. This raises the risk and possibility of refoulement".

Even in countries within the European Union there is a severe risk of not being admitted to the process. I do not believe that we can return applicants to third countries until we are sure that they are admitted to the process. If we regard that as an acceptable procedure, it will be done to us in return.

Last Tuesday I asked a question to which I would welcome an answer from the noble Baroness. I did not get it then. Perhaps I raised it at the wrong moment and she was not prepared for it. I refer to a hypothetical asylum seeker from Chad who wishes to apply for asylum in France because he speaks the language. He escapes overland through Nigeria, catches a plane to London--because he is much more likely to catch a plane if it is going to London than Paris--makes his way to France and is referred back by France to the UK under the third country rule. In those circumstances, what are we to do with that applicant? Do we admit him to our procedures--in which case well and good? It may not be quite what is wanted but it is better than nothing. Do we send him back to France--in which case we play battledore and shuttlecock? Do we send him back to Nigeria? If so, will Nigeria send him back to Chad? If that is the case, both we and France are in breach of our international obligations. I remind the noble Baroness that, since a great many planes touch down here on the way to continental European destinations, if there is a perpetual batting to and fro of third country applicants

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the flow of refugees to this country is likely to increase rather than diminish, which I understand is not the intention of the Home Office.

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