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Baroness Blatch: The noble Lord, Lord Hylton, has almost made my case for me, but I shall respond fully to the amendment.

The Government believe that it is appropriate, in considering potential third countries, to take into account any evidence of substantial links with the United Kingdom which would make it reasonable for the applicant's claim for asylum to be considered here

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on an exceptional basis. But for reasons which I will set out, we do not consider that provision in primary legislation covering ties is either appropriate or necessary.

As has just been said, we already operate a concession under which asylum seekers are not normally removed to a safe third country, but are instead admitted into our own asylum procedures if they have close ties here. The concession and the details of what are regarded as close ties have been published in Butterworths Encyclopedia of Immigration Law and we have no plans to alter it. It may assist the Committee if I set out details of that concession.

Cases are normally considered substantively in the United Kingdom, despite the applicant's arrival via a safe third country, if the applicant's spouse is in the United Kingdom; if the applicant is an unmarried minor and is a parent in the United Kingdom; or the applicant has an unmarried minor child in the United Kingdom. I am glad to reaffirm that. The term "in the United Kingdom" extends beyond people who are present here with leave to enter or to remain. It also covers a person who applied for asylum at the port of entry and who has been granted temporary admission to the United Kingdom while their asylum application is being considered.

Our policy that we do not normally remove an applicant on third country grounds if he or she has a parent, spouse, or dependent minor child present in the United Kingdom, either with valid leave or as an asylum seeker, is fully consistent with the principle of family unity and we exercise our discretion in the applicant's favour in the great majority of cases covered by the concession.

There is a further category of cases where the removal to a third country may be waived according to the merits of the individual case. Cases which fall into that category are as follows: where the applicant is a married minor with a parent in the United Kingdom; the applicant has a married minor child in the United Kingdom; the applicant is an elderly or otherwise dependent parent; or, finally, the family link is not one which would normally be considered but there is clear evidence that the applicant is wholly or mainly dependent on a relative in the United Kingdom and there is an absence of any similar support elsewhere.

Factors which may influence the exercise of discretion in all those cases include language skills--if the applicant is fluent in English but not in the language of a third country--and cultural links with the United Kingdom and the third country. Those are sensible and reasonable criteria to apply on a case-by-case basis. It would be extremely undesirable to transcribe that concession into a binding statutory requirement.

It is not hard to imagine circumstances in which it would be entirely appropriate to remove an applicant to a safe third country even though the applicant may have close ties or connections with the United Kingdom. The Secretary of State must therefore retain the discretion to consider the individual circumstances of each case to determine whether substantive consideration of a claim in the United Kingdom is justified.

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Let me give an example. Let us suppose that a non-European Union national committed a criminal offence in another European Union country and then attempted to gain entry to the United Kingdom on asylum grounds to avoid prosecution. Even if the applicant could demonstrate close ties with the United Kingdom, it might well be appropriate to return him to the European Union country rather than consider the asylum claim here. Amendment No. 37 provides no scope for discretion in such matters and would prevent removal in the case I have given as an example.

The noble Earl, Lord Russell, invited me to think the unthinkable. Even if I were to think the unthinkable, I would think first of all that I was fleeing for my life--because that is what asylum is about--or from the risk of persecution. I would be jolly thankful to find any safe haven at all. But if that country responded to my request in the way that we respond to requests under the arrangements we have set out, I believe I would be in very good hands.

Lord Dubs: I thank the Minister for her clear explanation of the way in which close family ties and other connections are respected in practice by the Home Office. In the light of that clear and helpful statement, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 38:

Page 3, line 14, at end insert (" and
("( ) that the person has been afforded the opportunity of speaking by telephone with an authorised representative").

The noble Lord said: This is a very simple amendment and I shall be extremely brief. The purpose of the amendment is to afford an individual who is about to be removed on third country grounds the opportunity of speaking by telephone to an authorised representative, be that a solicitor or other person appropriate for dealing with asylum appeals. If an individual is being removed, he will have the opportunity to establish whether he wishes to pursue an appeal and can set in motion the process before he has left the country.

I appreciate that there will still be difficulties as to whether there will be any support for such an application by his representative here after he has left the country. Perhaps the Minister can comment on that. But, essentially, I am seeking to provide a simple and easy assurance that a telephone conversation at the very least is possible before the individual is removed from the country. I beg to move.

Lord Mackay of Drumadoon: The effect of this amendment when taken with Amendment No. 44 would be to add an additional certification requirement in third country cases. The Secretary of State would be required to certify that the applicant had been afforded the opportunity to speak by telephone to an authorised legal representative. But the certificate, as set out in Clause 2, is currently designed to cover the safety of the country to which the applicant is to be removed. Access to legal advice and representation is not a matter which ought to be covered by the certificate.

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If the United Kingdom is not responsible for considering an applicant's asylum claim, then, for the reasons I indicated earlier, our objective must be to remove him as quickly, albeit as sensibly, as possible. In cases where removal is to a European Union country, we do not accept--again for the reasons I have made clear--that the appeal process should be able to begin while the applicant is still in the United Kingdom because there is no reason to doubt that it can be initiated upon arrival in a European Union country. It is for that reason that Clause 3 of the Bill, to which we shall pass shortly, provides that an applicant cannot bring or pursue an appeal while he is in the United Kingdom.

However, I am happy to give an assurance that asylum seekers, in respect of whom a certificate has been granted in terms of Clause 2, will be given access to a telephone before removal and will be provided with the telephone numbers of the Immigration Advisory Service and the Refugee Legal Centre, both of which are funded in terms of Section 23 of the 1971 Act to provide advice and assistance in connection with appeals. That is current Immigration Service practice and I am happy to give an assurance that that will continue.

On that basis I hope that it will not be necessary to press the amendment. As I explained earlier, and I need not repeat it considering the time of the evening, there is no practical reason why legal aid cannot be made available to applicants who are abroad nor is there any good practical reason why they cannot receive such legal advice and assistance as is necessary to bring forward an appeal. Clearly, it may be more difficult to do so than if one is resident in London and has the opportunity of going backwards and forwards to a solicitor's office or to a legal centre as often as one wishes. But the Government are satisfied that it can be done from these countries and for these reasons I invite the Committee to reject both these amendments.

10.30 p.m.

Lord Hylton: If the Government are prepared to allow applicants to make telephone calls to these two quangos, which do valuable and much appreciated work on behalf of applicants, why will they not extend that principle to a solicitor or a barrister if the applicant has one already?

Lord Mackay of Drumadoon: I am not excluding the possibility that when access is given to the telephone it can be used to telephone the solicitor or counsel or whoever the applicant is already in touch with. What I am objecting to and the reason why these amendments are opposed, is the proposal that that should become part of the certification procedure. I venture to suggest that that is a different matter from giving access to the telephone. Once one has that, one can ring whoever one wishes, but, for people who have no legal advice already, the telephone numbers of the two quangos which have been referred to will be provided. I hope that that will be accepted as a reasonable means of

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making contact between the applicant who has been made subject to a condition and whose removal is imminent.

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