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The Earl of Balfour: My Lords, perhaps I may add one further word here. In the case of a civil war, surely there is already provision for persons who are persecuted under those conditions to be permitted to come to this country. I wonder whether this amendment is either necessary or desirable.

Baroness Blatch: My Lords, there is no universally agreed definition of an agent of persecution. But I hope that those supporting this amendment will be content when they understand our policy on this subject, which follows closely that set out in paragraph 65 of the

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UNHCR handbook on procedures and criteria for determining refugee status. Persecution is normally related to action by the authorities of a country. However, we also accept that, in some circumstances, agents of persecution may be groups or elements within the applicant's country of nationality, other than the authorities. The noble Baroness has eloquently explained how that can sometimes be covert rather than overt activity. As set out in the UNHCR handbook, an applicant may qualify for asylum if the persecution by those other elements is knowingly tolerated by the authorities or if the authorities refuse, or prove unable, to offer effective protection, and the other inclusion criteria of the convention are met. In other words, we agree precisely with the way in which the noble Lord, Lord Dubs, set it out.

I do not consider that a statutory provision is desirable or necessary. It is the convention itself which engages our international obligations and which should be reflected in statute. The interpretation of the term "persecution", and more widely of the 1951 Convention as a whole, rests ultimately with the higher courts and is best left to case law.

The point that my noble friend Lord Renton made is very apposite. We believe that a rigid statutory interpretation is undesirable. Moreover, the amendment is flawed. Because of the way it is drafted, the interpretation that it seeks to impose would not apply to all asylum claims, but only to those falling within the scope of the special appeal procedure.

The European Union resolution of December 1995 on guidelines for the application of criteria for recognition and admission as a refugee sets out a joint position agreed by all member states of the European Union. But the resolution is not binding on member states. I recognise that the guidelines acknowledge persecution by third parties only if it is encouraged or permitted by the authorities. I can assure the House that we have no plans to depart from our long held broader interpretation, which I have already described and which follows closely that set down in the UNHCR handbook. I hope that the amendment will not be pressed.

Lord Dubs: My Lords, I thank the Minister. I should like to say a word or two about the comments made by the noble Lord, Lord Renton. He said that it would be simpler to have the system without all these qualifications. I wonder whether that is true. I can see that in some situations that may be advantageous, but I fear that where there is doubt about whether a non-governmental act of persecution falls within the 1951 convention, particularly stemming from the European Union resolution, that doubt can be removed by making it clear in statute that the persecution may take one of two forms. Although I question whether that would simplify the process in these circumstances, the noble Lord may well be right on the general proposition.

I turn now to what the Minister said. If I were completely satisfied that the Government had throughout acted according to that policy, I would be delighted and there would have been no need for the amendment. However, there have unfortunately been a number of instances where, as far as I can tell, the

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Government have not acted fully according to the policy described by the Minister. I have already given an example relating to Zaire. I believe that that occurred a year and a half ago--it may have been a little longer--but it certainly did not happen so long ago as to come outside the Government's policy. The individual concerned was sent back to Zaire when the Home Office Minister--I believe that it was Mr. Charles Wardle at the time--admitted in a letter that other organisations, not under the control of the state, were liable to harass or threaten people who might return, but said that he was satisfied that the Government of Zaire were not indulging in such persecution. If the policy described by the Minister had been operating, I suggest that that individual would not have been sent back to Zaire.

However, the Minister has given assurances and we shall take her at her word. The Government's policy is now what the Minister has said that it is, and people who are being persecuted by individuals or organisations acting independently of the state's authority and which the state cannot control in any way fall within the definition of "persecution". That is fine. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Removal etc. of asylum claimants to safe third countries]:

Baroness Blatch moved Amendment No. 24:

Page 3, line 1, leave out ("any of the provisions mentioned in subsection (2) below") and insert ("section 6 of the 1993 Act (protection of claimants from deportation etc.)").

The noble Baroness said: My Lords, in moving Amendment No. 24, I should like to speak also to Amendments Nos. 25 and 31. These technical government amendments remedy a minor technical defect in Clauses 2 and 3. They also make the third country provisions in the Bill easier to read.

At present, the Bill provides that, while an applicant can appeal against a third country certificate under Clause 3 of the Bill, he cannot bring an asylum appeal under Section 8 of the 1993 Act unless or until the third country certificate has been set aside by a special adjudicator. These government amendments adjust the Bill slightly so that an applicant cannot bring either an asylum appeal under Section 8 of the 1993 Act or a non-asylum appeal under the 1971 Act unless or until the third country certificate has been set aside by a special adjudicator.

The right of appeal under the 1971 Act on non-asylum grounds which would otherwise be available in third country cases would not generally be exercisable until after removal. But there would be a few cases where the asylum applicant could appeal on non-asylum grounds before removal, and this would represent an obstacle to quick removals. In practice, this would normally arise only where the applicant had an entry clearance for the United Kingdom. If the applicant had obtained that entry clearance while he was in his country of origin, it is most unlikely that we would seek to remove him on third country grounds. But if the

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applicant had obtained an entry clearance for the United Kingdom while he was in a third country then we would seek to make a third country removal.

It may assist the House if I give an example of the type of case we have in mind. Let us suppose that a Ghanaian national had been in France for a while and had a French residence permit which was valid for another year; while in France, he obtained an entry clearance to come to the United Kingdom as a visitor; when he arrived in the United Kingdom he was refused leave to enter; and he immediately claimed asylum. We believe that France should be responsible for considering the applicant's asylum claim. Indeed, under the Dublin Convention, France would be the state responsible for considering the asylum claim. It is undesirable that in a case of this sort a quick removal should be delayed by an appeal on non-asylum grounds.

The amendments also dispense with the need for the various cross-references to the 1971 Act and the 1993 Act contained in Clause 2(2). The Bill as currently drafted disapplies a number of provisions in the 1971 Act as applied by the 1993 Act, which would otherwise give appeals suspensive effect. This is no longer necessary, and deleting the cross-references makes the Bill significantly easier to read. I hope your Lordships will welcome that. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 25:

Page 3, line 11, leave out subsection (2).

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 26:

Page 3, line 25, after ("territory") insert ("has given an undertaking that it will substantively consider the application and").

The noble Lord said: My Lords, we are now dealing with the situation of an individual being returned to what the Government consider to be a safe third country. Many safe third countries are on the continent of Europe. Typically and frequently they include Belgium and France. They are countries through which an asylum seeker has passed, possibly fleetingly, possibly in transit at an airport; nevertheless the individual has spent a little time there. Under Clause 2, the Government may fairly easily remove an asylum seeker to a safe third country. The difficult question that arises is: what is to happen when asylum seekers reach that safe third country? Under what circumstances is it appropriate to return them? Are there sufficient safeguards? My belief is that there are not sufficient safeguards. That is why I have tabled the amendment.

As the Bill stands, the Secretary of State must simply be of the opinion that everything will be all right if the individual is returned to that safe third country. The purpose of the amendment is to tighten those provisions. The Secretary of State's opinion alone will not do. That country must be asked to give an undertaking substantively to consider the asylum application. That is a minimal request. It means that if we return an individual to Belgium or France, that country will have given an undertaking to consider the asylum claim. If it does not give such an undertaking and if it is not prepared to consider the asylum claim, there is a danger

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that having been removed from Britain to that second country, the asylum seeker will then be removed from the second country to another country and so on down the line until he or she is forced to return to the original country where the persecution occurred.

It seems reasonable that before returning an asylum seeker the Secretary of State should have some assurance that that country will consider the application. I am asking for no more and no less than that. That is the purpose of the amendment. Without such an assurance, we run the dangers which I have already described.

I understand that appeals by asylum seekers against a third country removal have a high success rate of about 40 per cent. Clearly, therefore, within the existing statutory framework the adjudicators are concerned about what will happen to people when we remove them. It is wrong in principle and in breach of the 1951 Convention that individuals who have fled to safety cannot find a government which will consider their application. In removing people to safe third countries we run the risk of exposing asylum seekers to the danger that they will not be able to make a claim anywhere and will be forced to return to the country in which they were originally persecuted. It is a reasonable proposition and is entirely within the spirit of Clause 2, except that the clause is too weak. It is better that the Government get an undertaking from the third country than that the Secretary of State should simply believe that everything will be all right. I beg to move.

9 p.m.

Baroness Williams of Crosby: My Lords, I speak to this amendment and the associated amendment, Amendment No. 28. The noble Lord, Lord Dubs, has referred to the need for a clear undertaking. Amendment No. 28 makes that stricter by requiring that it be a written undertaking. This is squarely and absolutely within the terms of the Dublin Convention which was signed by Her Majesty's Government in 1990. That convention is binding upon us and other members of the European Community.

I should like to refer to two articles of that convention. I refer first to Article 11. With the leave of the House, I should like to read a short phrase which appears in that article. If in line with Clause 2 of the Bill a country asks another country, in this case a safe third country, to consider an application which has originally been lodged with itself, the convention provides,

    "If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged".
I take it that means that if the application is lodged with the United Kingdom and the United Kingdom believes that the application should properly rest with a safe third country, in this case another member of the European Union, and that country refuses to take responsibility, under the terms of the Dublin Convention the responsibility rests with the United Kingdom, or in whatever other country the original application was made. That is what we have signed.

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The purpose of this amendment is simply to underline that commitment made by all those who signed the Dublin Convention. It does so by saying on the face of this Bill, in line with the Dublin Convention, that there must be an undertaking from that other state. The only difference between this amendment and the Dublin Convention is that the latter is tougher. The Dublin Convention lays down a six-month time limit within which that other state must accept responsibility. The noble Lord, Lord Dubs, has not gone so far and has not insisted on a six-month time limit, but we are by law committed to that time limit and undertaking.

In Article 5 of the Dublin Convention reference is made to written agreements between states, not written agreements with specific relationship to this particular instance but to the general proposition of written agreements to determine where responsibility lies. It cannot be said that that is either impractical or impossible, since our Government have acceded to it. In my view, this amendment cannot be rejected by the Government without rejecting what is laid down on the face of the Dublin Convention. I very much hope that the noble Baroness will feel that, in line with that convention, she can accept the amendment. I support the amendment.

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