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Lord Mackay of Drumadoon: In moving the amendment, the noble Lord, Lord Dubs, recognised, as he recognised earlier this afternoon and this evening, that it is acceptable on occasions to pass applicants on to safe third countries. It is clear from what the noble Earl, Lord Russell, said, that his objection to what the Government propose is much more fundamental. It is right therefore that the Committee should appreciate the importance placed on the provisions set out in Clauses 2 and 3.
The Government believe that the effectiveness of our immigration control is weakened significantly if economic migrants can travel from country to country until they pick one where they want to work, and feel that it would be of economic benefit for them to stay there. They seek to achieve that objective by claiming asylum.
A procedure which allows quick removal sends out a clear signal, which the Government believe requires to be sent out, that we are determined in this country to maintain the integrity of our immigration controls. If we are unable quickly to remove applicants to safe third countries, it becomes, for reasons which will be well understood by the Committee, more difficult, and, in certain instances, impossible to do so.
If there is a substantial delay in the matter being raised, it is more likely that the third country will decline to take such people, and, more important, if the appeal procedure is allowed to run before the removal takes place, it becomes much easier for the applicant to seek to create some doubt as to whether a safe country would deal with him in the way that the Bill proposes.
Accordingly, it is important to bear in mind what is set out in Clause 2. Subsection (1) provides that the Secretary of State has to certify that in his opinion certain conditions are fulfilled--those conditions being set out in subsection (3). I need not repeat them. It is not sufficient for the Secretary of State just to pluck an opinion out of the top of his head. He has to be satisfied that it is reasonable for him to hold that opinion, and any opinion that is then incorporated in a certificate is of course susceptible to judicial review by a process which is well known to the Committee.
It is important to bear in mind that this is a structured approach which is designed to back up the effectiveness of our controls which are deemed to be appropriate if we are to send the right messages.
Before I turn to deal with the specifics of the amendments, it may be of assistance to the Committee if I set out the Government's general position on agreements and undertakings in third-country cases. The Government are not opposed to bilateral or multilateral agreements where they can be negotiated. A later amendment is concerned with the Dublin Convention, to which my noble friend Lady Blatch has referred, which provides a mechanism for determining which member state is responsible for determining asylum applications lodged in the EU. This country ratified that convention
We do not accept that third-country removals should be held up in the absence of such agreement, and the Immigration Rules which apply in this country make that clear. Paragraph 345 of those rules provides that, so long as the applicant had the opportunity to claim asylum in the third country, or there is other clear evidence that he is returnable there, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of the asylum applicant.
If we were obliged in every case to obtain undertakings from third countries on a case-by-case basis, we would for all practical purposes be unable to operate an effective third country policy. We believe that it would encourage third countries to refuse to take applicants back and applicants would know that they could travel from country to country within Europe before finally claiming asylum in this country, safe in the knowledge that Parliament would have prevented their being returned to the safe country from which they came. An applicant who had previously been refused asylum by another European country would come to this country and lodge a further claim here safe in the knowledge that we would be forced to consider his claim substantively rather than return him to the country which had previously refused asylum.
The precise terms of Amendment No. 34 would prevent removal of an asylum seeker to a safe third country unless that country had given an exclusive undertaking that it would consider his asylum claim. We see no justification for introducing such a principle. The certificate which the Secretary of State requires to pronounce is to the effect that in his opinion, which is already subject to judicial review, the government of that country or territory would not send the asylum seeker to another country or territory other than in accordance with the convention. The Government consider that that is an adequate reassurance.
If the third country refuses to consider the claim substantively it does not follow that there has been a breach of the convention or that the asylum seeker has been placed at risk of persecution. For those reasons, the amendment is not acceptable.
I turn to a number of points which Members of the Committee have raised. The noble Lord, Lord Dubs, asked whether third country removal is a principle of international law. It may well be that there has been some confusion in the Committee about whether it is a principle or a practice. The Government proceed on the basis that the practice is consistent with the terms of the 1951 convention, which is widely recognised by the fact that the practice is followed in a large number of countries.
I turn to the somewhat hypothetical case raised by the noble Earl, Lord Russell, involving Chad, Nigeria and France. If the hypothetical situation be as described by the noble Earl and the route followed was from Nigeria to the United Kingdom I understand that the claim would be considered substantively and would not be dealt with in any other way.
Various comments were made in passing about procedures in France, Greece and Italy. Clearly, Her Majesty's Government keep in touch with their European partners about the way in which they handle their asylum and immigration procedures.
If there were any serious concern about what was happening in a particular country, I venture to suggest that it would be very difficult for the Secretary of State to grant a certificate in terms of subsection (3)(c) of Clause 2; namely, that it was his opinion that the Government would act in accordance with the convention. If there were such serious weaknesses, it is unlikely that the convention would be followed. For those reasons, I urge the Committee to reject Amendment No. 34.
Baroness Williams of Crosby: I ask the noble and learned Lord to deal with one point which I raised to which he has not replied. He indicated that the Government could not accept amendments of the kind we are putting forward. He referred to "safe countries". How does he define a safe country if he has no assurance that that country will allow the use of an appeals procedure for asylum seekers?
Moreover, he did not reply to the point made by my noble friend about what we would do when treated as a third country by another country because the people concerned had gone through the UK on their way to a European Union country. It seems to me that that matter can be dealt with adequately only under the third pillar, to which the noble and learned Lord did not refer. Will he not consider those points?
As regards the third pillar, there are informal discussions between member states about their prospective procedures. The Government are not prepared to go to the extent of reaching an agreement beyond that which is set out in Clause 2(3). Otherwise, by a different route, one is effectively getting into a situation which this amendment and similar later
A great deal seems to depend on the opinion of the Secretary of State. I am not suggesting that the Secretary of State would not act on his own best judgment, but the fact is that there would be no proper assurance that the government to which the individual was returned under the Clause 2 provisions would not in turn say that there was another country to which the person should be moved. By that time the safeguards about which we have heard would no longer be applicable. Indeed, if the individual was moved quickly from the safe third country to which we had sent him, the provisions for appeal under Clause 3 would hardly be operative because the individual would not be in a position to exercise those rights. But we may come onto that in a few moments.
As his argument against the amendment, the Minister said that it would be too time-consuming to deal with the matter on a case-by-case basis because every time we wanted to send somebody back we should have to obtain that country's agreement that the individual's claim would be considered there. A subsequent amendment deals with the Dublin Convention, but in a sense that convention already provides a possible model. There is no need to do it on a case-by-case basis. We could enter into agreements with other countries to the effect that they would allow the claims of whoever we sent to them to be properly considered, provided that we could demonstrate that such individuals had spent some time in the other country. Then, in turn, we would do likewise if the journey had been in the reverse order.
It seems to me that we have a model in the Dublin Convention; that we have a precedent that this could be done by agreement; and that it need not be done on a case-by-case basis. Therefore, I do not see why the Government are so reluctant to move in that direction. Indeed, we will put the argument more clearly in the context of the Dublin Convention in a short while when we deal with that amendment. I am rather disappointed that the Government do not accept that there is a problem which has been stated by several Members of the Committee.
The problem is that once a person is removed from this country there is no assurance that any country will allow him to claim asylum there. The individual will, in turn, be moved from country to country until he may well be left in the original country from which he escaped and where he may face danger. That is the gap in the system. If we could find some way of closing it, we could then accept the thrust of the policy. However,
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