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Lord Renton: My Lords, I thank the noble Earl for giving way. Perhaps I should say that I am not merely engaging in tit for tat. The noble Earl mentioned the burden of proof in relation to persecution, but he must surely realise that the burden of proof has to lie upon the person who would have the knowledge. We cannot expect our immigration officers to have knowledge of all the kinds of persecution that take place around the world. That must always be for the asylum seeker to prove in relation to his own country.
Earl Russell: My Lords, we happen to be discussing this in the presence of the noble and learned Lord, Lord Bridge of Harwich, who is the author of the leading judgment on the burden of proof in this matter. I refer to the judgment in the case of Sivakumaran in the Appellate Committee of this House in 1993. That ruled that the burden of proof had to be to a reasonable degree of likelihood. Subject to the correction of the noble and learned Lord, I understand that to be the present basis of the law. It raises a misgiving which has been expressed about the words "serious risk of persecution" which appear in the Bill. The fear has been expressed that that introduces a more stringent standard of proof. I do not have the learning to judge whether that is so, but I would welcome the reflections of both the Minister and the noble and learned Lord on that point, which seems to me to be worth considerable thought.
Lord Bridge of Harwich: My Lords, I am afraid that I must apologise to the House because I do not remember what I said. I do not remember what the case was about and I have no thoughts at the moment as to what the appropriate burden would be.
Earl Russell: My Lords, I beg the noble and learned Lord's pardon, but since he has given the leading judgment I thought it only proper to quote it. I was not expecting an instant judgment from the noble and learned Lord without having heard counsel. I realise that I could do no such thing with any propriety. I apologise if I appear to be doing otherwise.
My noble friend Lord Avebury and the noble Lord, Lord Renton, raised the question of legality. The potential conflict is with Article 3 of the UN convention which states that claims should be considered without respect to national origin. The Minister attempts to reject that on the ground that the word "refugee" in the convention applies only from the time the claim is recognised. The custodian of that convention is not the British Government; it is the UN High Commissioner for Refugees. The handbook is quite explicit that the word "refugee" applies under the convention from the moment the claim is made. My noble friend quoted the judgment of the noble and learned Lord, Lord Nolan, in the Khaboka case to the same effect. I must remind the Government that they are not the final and ultimate authority on the meaning of Acts of Parliament. That authority rests with the courts, which have, on the whole, tended to find against the Government.
I should like to refer briefly to Regulation 3 which extends the designation procedure to safe third countries under Sections 2 and 3 of the Act. I have some misgivings about Switzerland in this context. The Minister will know--at least, she should know because we have often told her so--that the question is not whether the country concerned is absolutely safe, but whether it is safe for the particular applicant and whether the applicant may gain access to the processes. Switzerland has a rule of law that you cannot gain access to the process if you spent 20 days in another country. I have here a Home Office adjudication--I shall give the Minister the reference if she would like it--which ruled that Switzerland was not a safe country to which to return people.
As with the United States, curious things sometimes happen with regard to immigration procedures. My mother once attempted to gain entry to the United States and was asked to sign a document saying that she did not believe that resistance to authorised government was justified under any circumstances whatsoever. She read it carefully and wrote, "I agree with this. I think that the United States should still be subject to the British Crown". It took all my father's diplomatic skill to get her into the country. The United States is a chancy country on occasion.
I should like to concentrate today on Romania. I do not claim any first-hand knowledge, but I hope that I am as capable as any other person of reading evidence from a multiplicity of sources. I wonder whether the Home Office is the appropriate authority to form assessments of the state of human rights in foreign countries. I should have thought that the Foreign Office would be a great deal more qualified to do that--and there can be a difference.
Viscount Waverley: My Lords, the Minister of State in another place made it quite clear that she had taken the view of the Foreign and Commonwealth Office into account when preparing the Home Office assessments.
Earl Russell: My Lords, the noble Viscount brings me directly to my next quotation which happens to be from the Independent of the day before yesterday. It deals with the case of the Ahmadis to whom the right reverend Prelate referred. The Foreign Secretary, writing to the Minister without portfolio on behalf of a constituent, said:
In the case of Romania, the Home Office states that that country has been profoundly transformed and has turned into a democracy in which basic human rights are respected. I do not wish to attack Romania as a country. That country is making great efforts. I remind the House of what I said about shades of grey. I believe that it is never that simple. First, it takes a long time to remove from power all of the people who served the previous regime. That is true in all cases. Secondly, it takes a long time to learn the constitutional habits of thought of a free country. Thirdly, it takes a long time to learn the basic habits of thought necessary to have a police force who practise the rule of law.
Let us consider further freedom of the press and the case of Nicolae Andrei, who was told by the prosecutor that he had been found to be a confirmed oaf who lacked journalist training and experience and therefore was not familiar with the types of expression that could be used in criticising certain aspects of the lives and activities of state leaders. I am sure that Ministers of all parties in this country have often wanted to say that to journalists but, thank God, they cannot do it from a prosecutor's chair.
Under Article 200 of the penal code homosexuals are liable to imprisonment. Although I am aware that there may be those among your Lordships who are less distressed by that than I am, that is precisely why such people need protection. It is not those who are universally popular whose human rights need to be protected.
Finally, I touch on the treatment of the Roma. Amnesty International views the abuse of the Roma as a nationwide pattern. I see no reason to disagree with it; nor do I see any reason to disbelieve its evidence that Roma houses have been burned and Roma have been assaulted so savagely that one preferred to stay and burn to death in a burning house than go out and face the crowd, while the police looked on and did nothing. The Minister may say that these are occasional cases. There are a number of occasions. Abuses happen in the best regulated countries. Where they occur there may be genuine refugees. Where there are genuine refugees, we are bound by law, British and international, to give their claims proper examination. I am not certain that that is compatible with these regulations.
Lord McIntosh of Haringey: My Lords, in proposing this order the Government have always said that three criteria apply to the designation of a country, in what we shall not call the white list, for the purposes of asylum legislation. The first criterion is that in general there should be no serious risk of persecution in that country. The second criterion is that there should be a significant number of claims from that country. The third criterion is that there should be a high proportion of those claims which are refused.
It is no good attempting to deal with the problems raised by the phrase "in general no serious risk of persecution". We recognise that the phrase has been designed in Europe and simply adopted by the Government for the purposes of UK legislation. There is no greater chance of changing it than there is chance (or threat) of our leaving the European Union. But it is still a profoundly unsatisfactory phrase because the words "in general" can never apply to any particular application. No one applies to be a refugee in this country because there is in general a threat of
Noble Lords who have spoken with great authority about particular countries on the list have revealed the extent to which, although there may be no general serious risk of persecution, many individuals and groups of individuals in those countries may face a very serious risk which demands just as serious treatment of their applications as those from any other country. The noble Lord, Lord Avebury, spoke about Bulgaria; the right reverend Prelate the Bishop of Ripon spoke about Pakistan; the noble Earl, Lord Sandwich, spoke about India; the noble Lord, Lord Rea, spoke about Ghana; and the noble Earl, Lord Russell, spoke about Romania. All have provided details of the regimes in those countries which go far beyond the Home Office and, I accept, the Foreign and Commonwealth Office assessments of the conditions in those countries. But even if they did not go far beyond that point valid applications would still be likely to be made for particular purposes from countries put on to the white list and the criterion of no serious risk of persecution in general would not be adequate for the purpose. I suspect that the Government rely on the second and third criteria rather than the criterion recognised in European legislation.
What is the effect of the designation procedure? The Government deny that there is a presumption that an application is unfounded, or that because an application is unfounded it will be refused. They denied that consistently in the debate in another place yesterday and preferred to use the words "a rebuttable presumption". Clearly, that means that the principle of British law that a person is innocent until proved guilty is to be turned on its head for the purposes of this legislation. It means either that there will not be the same degree of consideration given to applications from these countries as is given to applications from other countries which are not designated under the order or it means nothing.
The Government do not claim that the consideration is the same. They do not deny that, for example, there is no possibility of appeal to a tribunal from the decision of an adjudicator in an accelerated case. They do not deny that the speed of consideration required of one of these accelerated applications will be so great that for many people it will be very difficult to assemble a case in the time that is provided for.
I do not believe that the Government are even addressing the issue raised by Sir Iain Glidewell in his inquiry when, on the basis of substantial evidence, he showed that having a fast-track procedure for part of the backlog of applications will mean simply that there will be a slower track procedure for the rest. He showed convincingly what is well recognised: that is, the number of long outstanding applications; the fact that the applications and pending appeals are growing by the week rather than reducing; and that the introduction of fast-track procedures for applicants from certain countries will serve only to increase the delays for the rest. The effect of that can be only that in the end the Government will have to increase the number of exceptional leave to remain cases which are given not
Therefore, as a result of this procedure we might well end up with more rather than fewer people staying in this country, and in many cases we would end up with the wrong ones. Everyone acknowledges--and Sir Julian Critchley made it clear in a letter to The Times this summer--that there will be genuine applications from the most unlikely countries and you can distinguish between a genuine application and an unfounded application only after a proper examination of the case.
The order follows on logically from the legislation. The noble Baroness, Lady Rawlings, appeared to believe that it was an abuse of the procedure of this House to be considering such an order. However, she will acknowledge that the Government made it possible for the matter to be considered on the Floor of the House in response to the affirmative resolution procedure. It is accepted that we are considering the order in addition to the Motion tabled by the noble Lord, Lord Avebury. I do not see what is improper about that. A few stalwart defences of the Government's position have repeated the arguments put forward during consideration of the Bill earlier this year. But there have also been five extremely well-informed speeches about individual countries which have shown the inadequacy of the consideration that is being given by government to the countries which are to be designated in the order.
There is no accusation of dereliction of duty on the part of government departments concerned. We are not saying that they have not done their best. We are saying that the attempt to make general assessments of the human rights positions of other countries is an unenviable and in many ways undesirable procedure. In the 1980s the United States considered having a white list. It decided that not only would it be impracticable but that it would put in question some of the foreign policy initiatives which it might wish to undertake in other areas. Of course, the existence of a white list which clears some countries means, by implication and deduction, that some other countries are not being cleared.
The United States realised that by having a white list it would by default be casting a general judgment on the human rights position of a large number of other countries. It decided that as a matter of commonsense and decent foreign policy it was not a good idea. I do not believe that it is a good idea now and I do not believe that the different consideration which is being proposed under the legislation and through the means of the order can possibly be in accordance with the 1951 United Nations Convention on Refugees.
In the debate in the other place last night, the Minister responsible, Miss Widdecombe, made a most extraordinary statement. She said that there was a difference between asylum seekers and refugees. She said that the article in the United Nations Convention:
Baroness Blatch: My Lords, this has been a good and open debate, unlike, I am afraid, the debate through which I sat in another place last night, where I believe there was wilful misunderstanding of the asylum procedures.
The right reverend Prelate was wrong in saying that today's debate is not about going over old ground. I am afraid that it is about going over old ground because the Motion before the House takes us over old ground. It questions the principle and the policy of establishing a designated list at all, a decision which has already been taken by both Houses of Parliament.
I confess that, like my noble friend Lady Rawlings, I am surprised that your Lordships should be asked to debate the principle of designation of safe countries of destination in advance of the order which the Government will bring before your Lordships today.
The power to designate countries of destination was fully debated when Parliament approved Section 1 of the Asylum and Immigration Act 1996. I do not intend to go into that debate once more. The fact is that Parliament decided to include that power in the legislation. Paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as substituted by the Asylum and Immigration Act 1996, empowers the Secretary of State to specify in an order countries in which it appears to the Secretary of State that there is in general no risk of persecution.
The order which has been laid before your Lordships in draft lists seven counties in which we believe there is in general no serious risk of persecution. The Government have made no secret of the counties they have been considering for such designation. These are Bulgaria, Cyprus, Ghana, India, Pakistan, Poland and Romania. They are the same seven countries which the Government indicated were being considered as candidates for designation when this House was considering the Asylum and Immigration Bill. Therefore, when Parliament decided to enact the power of designation it did so in the full knowledge that the Government considered these to be countries to which the new procedure might properly be applied. In view of this, I find it extraordinary that the noble Lord, Lord Avebury, should now put forward a Motion deploring designation as a matter of principle.
Each of the countries of destination specified in the order has functioning institutions, together with stability and pluralism, sufficient to support an assessment that the general level of risk to those living in the country is low enough to justify designation.
We have made available an explanatory note on the designation of these countries, together with background country assessments setting out the Government's view of the general conditions in each of the seven countries. We have from the outset made clear the three main criteria which need to be met for designation to be appropriate. These are, first, that there is in general no serious risk of persecution in the country or territory concerned; secondly, that the number of asylum applications in the United Kingdom from its nationals is significant; and, thirdly, that a very high percentage on examination are refused.
The Government have emphasised many times previously the safeguards built into the designation principle. But it is important for me to remind your Lordships again of two key points. First, there will be no blanket ban on claims from designated countries. Each claim will be considered on its merits. In this respect a claim will be treated no differently from any other asylum claim to be determined. Secondly, an applicant will still have an appeal to an independent adjudicator if the application is refused.
Last year, among nationals of the seven countries we propose to designate at least 97 per cent. of asylum claims were refused. That represents over 6,750 applications. Designation will enable an accelerated appeal procedure to be applied to claims which are refused. The accelerated procedure will apply only if the case has been certified individually and if there is no evidence establishing a reasonable likelihood that the applicant has been tortured in the country of destination. If the adjudicator agrees that the application is unfounded, that will bring the process to an end. There will be no further avenue of appeal to the Immigration Appeal Tribunal.
Designation will help the asylum system to deal quickly with the large number of unfounded applications we currently receive from countries which are, in general, safe. At the same time it will not detract in any way from the ability to consider the small number of applicants from such countries who may have a genuine claim. The United Kingdom is not the only country to have enacted a procedure of this kind. Denmark, Finland, Germany, the Netherlands and Switzerland already have similar arrangements.
In order to decide which countries should be designated we have had to assess whether the general level of risk to people living in a particular country is sufficiently low to warrant designation. That is made quite clear in paragraph 5 of Schedule 2 to the Asylum and Immigration Act 1993 in the use of the words,
The Motion of the noble Lord, Lord Avebury, appears to concern itself only with that part of the order which designates countries of destination. With your Lordships' permission, I should like briefly to draw attention to the second part of the order which designates certain countries as safe third countries. The Asylum and Immigration Act 1996 provides that where an asylum seeker is to be removed to a member state of the European Union with the intention that any asylum claim should be pursued there, the applicant may exercise his right of appeal only after he has left the United Kingdom. This is on the basis that his claim will be properly considered in the country to which he is being removed.
The Act enables similarly safe third countries to be designated by order, and the present order designates the United States of America, Canada, Switzerland and Norway. I notice that it was only the noble Viscount, Lord Waverley, who made a specific reference to this and gave it his full support. I am assuming that the fact that it has not been referred to too much means that it has the support of the House. If the noble Lord, Lord McIntosh, believes that the United States, Canada and Norway should not be included he did not say so. I should like to hear his reasons for that.
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