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Baroness Blatch: My Lords, going back to what Mr. Justice Hidden found, he did not find that removal to Belgium would be unsafe; only that there were unsatisfactory aspects of the decisions of earlier adjudicators upholding removal to Belgium. His was a judgment based on procedural considerations, not on an assessment of the safety of Belgium.

The noble Earl referred to France in regard to Mr. Iqbal. The allegations relate to a single applicant and a single French port and do not in themselves provide cause for us to doubt the general safety of France. I understand that the person at the centre of the allegations is in Paris and his asylum application is receiving consideration from the authorities. Nonetheless, special adjudicators have shown that they are concerned about the allegations and we are presently investigating the precise circumstances of the case.

Allegations have been made before that France gives inadequate consideration to asylum seekers returned from the United Kingdom. We investigated one such case last year and found that the applicant had not in fact claimed asylum in France. Over the past year or so

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most adjudicators have upheld the Secretary of State's certificate in French cases, and in many of those cases where they did not the issue of concern was not the safety of France but the time which had elapsed since the applicant had arrived in the United Kingdom.

I referred in detail to the removal of asylum applicants to safe third countries at Second Reading, in addressing amendments at Committee stage and in speaking to amendments throughout today. I have defended the importance of Clause 2 to this Bill and it follows that, if Clause 2 is to be part of the Bill, I should defend that Clause 3 should stand part of the Bill because it gives a right of appeal against being sent to a third country. They are important to the Bill. I hope that they will remain part of it and therefore I oppose the amendment.

Earl Russell: My Lords, I hold the judgment in the case of Bostam. I can only say, without detaining the House for a very long time--which I do not wish to do--that I do not agree with the noble Baroness's reading of it.

In the case of Iqbal I will grant the noble Baroness that he is still in France. He, like others before him, has been extremely fortunate in his lawyer. His lawyer in fact tried to obtain a hearing for him. He was denied an application form for a hearing on the ground that Iqbal had no valid address in Paris, which was a prerequisite for obtaining forms. He had to get through a good many more obstructions of that sort before obtaining a hearing for Mr. Iqbal.

There is therefore a real difficulty, and the fact that Mr. Iqbal has been fortunate enough to overcome it and has a lawyer with enough vitality to obtain a hearing for his case in this country, makes him unusual rather than the practice of third country return to France safe.

I really cannot think that the noble Baroness has taken on board the risks inherent in third country procedure. I know it is late at night but one cannot bring back clause stand part on Third Reading. It has always been my view that if it is proper for the House to be in session, then in the last resort it must be proper for the House to divide. It is my last chance to do so and therefore I ask the opinion of the House.

9.55 p.m.

Division called.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, the Question is that Amendment No. 30 be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not content".

On Question, amendment negatived.

10 p.m.

Clause 3 [Appeals against certificates under section 2]:

Baroness Blatch moved Amendment No. 31:

Page 4, line 2, after ("under") insert ("Part II of the 1971 Act (appeals: general) or").

On Question, amendment agreed to.

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Lord McIntosh of Haringey moved Amendment No. 32:

Page 4, line 4, leave out subsection (2) and insert--
("(2) A person who has been sent to a country or territory to which section 2(4) applies shall be entitled to be admitted temporarily into the United Kingdom in order to attend any hearing of an appeal brought by him under subsection (1)(a) of this section.").

The noble Lord said: My Lords, this is a probing amendment. I say that because I am very clear that, although the principle of the amendment is right, further qualifications will be necessary if the amendment is to work in practice. With this amendment we are trying to temper the wind to the shorn lamb to some extent. Under Clause 3, if somebody has been sent out of the country to a safe third country under the provisions of Clause 2, he has to conduct his appeal from that third country. All the evidence from the Council on Tribunals and everyone else is that the success and justice of an appeal is very much diminished if an appellant is unable to be present in person in order to conduct his appeal. The provisions of Amendment No. 32 are that,

    "A person who has been sent to a country ... to which section 2(4) applies"--
that is the safe third country--

    "shall be entitled to be admitted temporarily into the United Kingdom in order to attend any hearing of an appeal".
The effect of that would be to reduce to some extent, but not totally, the possibility of the UK breaching its obligations under the United Nations convention on refugees. It will mean that applicants for asylum in the United Kingdom returned to a so called "safe" third country would have the theoretical ability to avail themselves of the protection of the United Kingdom if that third country in fact failed to admit them to its own asylum procedures. That is a matter that was considered in the last debate. We are attempting to protect the basic standards of due process in Clause 2 appeals.

The reason why I say that this is a probing amendment and not one that I can possibly submit to a vote in the House is that there are further qualifications which are necessary. First, a person granted leave to enter the United Kingdom for the purpose of attending an appeal brought under this subsection should not be entitled in turn to appeal against a refusal to vary that leave. Secondly, a person granted leave to enter the United Kingdom for the purpose should not be entitled to appeal against a subsequent decision of the Secretary of State to make a deportation order against him. Thirdly, a person granted leave to enter the United Kingdom for this purpose should not be entitled to appeal against the decision of the Secretary of State to set directions for his removal subsequent to the determination of that appeal. I am recognising that this amendment is technically defective in that a number of potential subsequent conditions in which further appeal would be necessary would have to be denied if the amendment were to work satisfactorily.

I see that the noble Baroness, Lady O'Cathain, is with us. I do not know whether she has been advised on this issue, but there is a possible risk that the transport sources open to asylum seekers may be loth to risk incurring liability under the Immigration (Carriers'

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Liability) Act 1987. I think that there would have to be a discretionary waiver to deal with the problem, stating that the passenger was arriving in the United Kingdom for the purpose of pursuing an appeal under Clause 3 of the Asylum and Immigration Act. Carriers could be notified of that waiver of liability by a standard information clause in writing, annexed to the notice of appeal carried by the passenger. I do not know whether the noble Baroness has been advised on this matter, but I am looking at the potential objections to my amendment, which I am moving because I want the Government to recognise the fundamental justice of having an appellant present in person at such an appeal.

I say that with some confidence because the Glidewell Report's final recommendations dealt with that. Recommendation X on page 20 states:

    "At the least, if this clause is enacted, it should be amended to state that the appellant should have the right to return to the UK to be present at the appeal hearing and give evidence. This would help to ensure that the case was properly considered, although we take on board evidence which suggested that the individual might well have 'disappeared' by the time of the hearing".

The Glidewell Commission considered the matter in considerable detail and concluded that the right which is demanded in this amendment should be granted to appellants who have been sent to a third country under the provisions of Clause 2.

I repeat that we do not expect the amendment in its present form to be incorporated into the Bill, but this is an issue of great concern. It was raised in the Glidewell Report and deserves careful consideration by the Government. I beg to move.

Baroness Blatch: My Lords, Amendment No. 32 would allow an asylum seeker whom we had removed to a third country to return to the United Kingdom to pursue his appeal. The noble Lord may say that it is not his intention to table wrecking amendments--he has said that he will not press the amendment--but that is the effect of the amendment. If we remove an asylum applicant to a third country, but then allow him to return to the United Kingdom, the benefits of making a quick removal will have been lost completely. The question of whether the third country would take the applicant back would arise all over again. If this amendment was accepted, there would be no point in removing the suspensive effect of third country appeals, and the benefits of Clauses 2 and 3 would be lost. That may well be the intention.

Nor is the amendment necessary. The arrangements for legal advice and representation from abroad are perfectly satisfactory. Asylum applicants who are removed on third country grounds will be provided with forms which will give a full explanation, in a language they understand, of the reasons why they have been refused and how they should go about pursuing their appeal.

The Immigration Advisory Service and Refugee Legal Centre are funded to provide representation at immigration and asylum appeals under Section 23 of the Immigration Act 1971. The Immigration Advisory Service is already accustomed to representing people pursuing immigration appeals from abroad. Section 23

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funding will likewise be available for representing asylum seekers appealing from abroad against removal to a third country.

In addition, advice under the green form legal aid scheme will be available, subject to normal financial eligibility requirements. The scheme is available for advice on any matter of English law, regardless of whether the person seeking advice is in the country or outside it. There is no problem about the client having to sign a form in the presence of the solicitor whose advice is sought. Solicitors who have been franchised by the Legal Aid Board have delegated authority to accept postal applications under the green form scheme (including faxed applications). There is also provision for a friend or relative of the client to attend the solicitor in order to apply for legal advice on the client's behalf.

A third country appeal is significantly different from a substantive asylum appeal. The issue in a third country case is not whether the appellant's account of any ill-treatment he has suffered in his country of origin and of his reasons for claiming to fear persecution is credible. The issue is whether the third country is safe, and the certification conditions contained in Clause 2 are satisfied.

The case usually revolves around a discussion about the country's asylum procedures and its legal system. The amendment would underline the objective of Clauses 2 and 3 which is to enable us to make quick removals to third countries while those countries are still prepared to take back the asylum applicant. If the applicant were subsequently allowed to come back to the United Kingdom a second time it is highly unlikely that the third country would take him back again. The amendment is unacceptable. Although it is not being pressed tonight, I will continue to oppose it if it is returned to at the next stage of the Bill.

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