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Lord Cope of Berkeley had given notice of his intention to move Amendment No. 12:

Page 6, line 28, at end insert--
(“( ) Special arrangements shall be made to facilitate and expedite the return to the Republic of Ireland of any person who, after taking independent legal advice, requests to be returned.").

The noble Lord said: My Lords, the Minister's reply seems to me to be very helpful. Clearly he and his officials have been working hard to fulfil the undertaking given by the noble and learned Lord, Lord Williams of Mostyn, on 12th July. I am glad to know that it is expected that the process will work more quickly and smoothly in the future, without alterations to the mechanism.

One suggestion was made and repeated in the letter sent to the noble and learned Lord, Lord Falconer, from the Northern Ireland Law Centre on 2nd September. It stated that the Chief Immigration Officer in Belfast should be given authority to make Dublin convention requests direct to Dublin through the department of justice without having to go through the Third Country Unit in Croydon. I believe that within the island of Ireland that might speed up matters and save Croydon some trouble. Croydon has quite enough to do without the extra handling involved in these few but rather special requests. Has that matter been considered?

Lord Avebury: My Lords, this morning I spoke to the Northern Ireland Law Centre, and I listened carefully to their arguments, which have already been mentioned by the noble Lord, Lord Cope. I believe that there are powerful reasons for accepting the

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suggestion, mainly because when the law centre sends cases to the IND in Croydon it takes at least one month for them to come back. No matter how often they visit the Department of Justice, Equality and Law Reform in Dublin--although I welcome the fact that they do have that close liaison--they cannot accelerate the procedures in Croydon. We know of the utter chaos there, and the Third Country Unit should be relieved of the small amount of work entailed in dealing with these cases which, as the noble and learned Lord has explained, are not numerous.

If the cases could be dealt with directly between the Chief Immigration Officer in Belfast and the Department of Justice, Equality and Law Reform in Dublin, that would be much quicker than having to have all the papers sent to the IND in Croydon and then returned to Belfast before any decision is made.

I emphasise that the law centre in Northern Ireland is not suggesting that people should be sent back to Dublin against the wishes of the authorities there, or that we should try to palm off those people who have properly sought asylum in the United Kingdom at an earlier date. All that is suggested here is that an administrative tidying-up should be implemented by avoiding the necessity for Northern Ireland always to have to deal through Croydon. Given that the Government are keen on devolution, I should have thought that this might be acceptable to them.

Lord Renton: My Lords, despite what the noble Lord, Lord Avebury, said I should like to emphasise, from personal experience of long ago and more recently, that the Government of the Republic of Ireland have been exceedingly co-operative in helping us to deal with the difficult and delicate matter of controlling immigration.

Lord Glentoran: My Lords, I, too, should like to support the noble Lord, Lord Avebury, bearing in mind the conditions in which detainees in Northern Ireland are often held. I shall be interested to hear what the Minister has to say on those conditions later in the debate. However, it would be extremely helpful if a direct line of communication could be set up between Belfast and Dublin, particularly as sometimes--I do not have the figures--some people have become lost and wandered over the Border. They have then been collected up by the authorities in Northern Ireland entirely by accident. That seems funny, but I am not sure whether those involved would agree. However, I think it would be very helpful if this could be done.

Lord Falconer of Thoroton: My Lords, the answer is yes, we have considered the question of whether the Chief Immigration Officer in Belfast should be authorised to make Dublin convention requests direct to Dublin. After careful thought we have concluded that he should not, for the reason that if he were given that power without reference to IND, that could potentially lead to inconsistencies in the operation of the Dublin convention.

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Further, we considered that it was not necessary for that to be done because the Third Country Unit can, when necessary, process requests very quickly, and plainly would do so when there was any issue of detention involved.

Lord Avebury: My Lords, before the noble and learned Lord sits down, I agree that under the Dublin convention there can be more than one identified group within each member state. That is a phrase used in a letter from Ms Barbara Roche to the law centre in Northern Ireland. She states,

    “It is an important operational feature that information can only be exchanged between identified groups notified by Member States".

Does the Dublin convention require each member state to have only one identified group, or would we be free, if it was thought convenient to do so, to have two identified groups, one in Croydon and one in Belfast?

Lord Falconer of Thoroton: My Lords, with the greatest respect to the noble Lord, that does not meet the point that I have just made. There must be consistency in the way that the Government operate their rights under the Dublin convention. To give two people those powers, which may well be lawful under the terms of the convention, does not deal with the point I have made on consistency.

[Amendment No. 12 not moved.]

4.30 p.m.

Lord Goodhart moved Amendment No. 13:

Leave out Clause 9.

The noble Lord said: My Lords, Amendment No. 13 stands in my name and that of the noble and learned Lord, Lord Ackner. The amendment is of very great importance. We believe that Clause 9 offers a threat to the legitimate rights of asylum seekers and involves a breach of the obligations of the United Kingdom under an international treaty into which it entered nearly 50 years ago.

I should like to start by explaining--I shall do so as briefly as I can--what is the present law, both domestic and international; how that will be changed by Clause 9; and why that is wrong. I start with the Geneva Convention relating to the status of refugees, signed in 1951, which I shall call the refugee convention. Article 1 of that convention defines a refugee as,

    “any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".

Article 33 of the refugee convention states:

    “No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".

The Dublin convention, of which we have already had some discussion, is a European Union convention, binding on all member states. The convention was

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signed in 1990 and came into force on 1st September 1997. The ease of crossing the internal borders of the European Union had, as is well known, led to problems because an applicant for asylum, having arrived in one European Union state, might move to another before claiming asylum or, having applied for asylum in one state and been refused, or having become bored with waiting for a decision, might move to another and apply again. We accept that a standard practice was needed to prevent multiple applications and to decide which state had jurisdiction to hear the application for asylum.

The Dublin convention lays down rules for deciding those questions and in general provides, under Articles 6 and 7, that it is the state of first entry which hears the application. If, therefore, the applicant lodges an application in another state, the latter can return the applicant to the state of first entry, which is required to consider the application. However, the United Kingdom, like other member states, is not obliged to return an applicant to the state of first entry; nor does the Dublin convention in any way alter the terms of the refugee convention. We in the United Kingdom should not therefore return an applicant to a state where rights under the refugee convention are not properly applied.

I turn now to the United Kingdom legislation. I shall refer only to Section 2 of the Asylum and Immigration Act 1996. That allows the Home Secretary to deport an applicant to certain states, including European Union states, if he is satisfied that three conditions are fulfilled: first, that the applicant is not a national of the state to which he is to be sent; secondly, that his or her life or liberty would not be threatened in that state; and, thirdly, that the government of that state would not send him or her on to another state otherwise than in accordance with the refugee convention.

The effect of Section 2 of the 1996 Act has been decided by a recent decision of the Court of Appeal--known as the Adan case. That was decided on 23rd July--after, that is, the debate on Clause 9 at the Committee stage of the Bill in your Lordships' House. The problem in that case arose because France and Germany interpret the refugee convention in a way which is different from the way in which the United Kingdom and, I believe, most other member states of the European Union interpret it. France and Germany say that an applicant can be treated as a refugee only if the persecution which he or she fears is persecution by the state authorities or is condoned by them. The United Kingdom and others interpret the convention as applying also where the state is unable to prevent persecution by non-state parties.

Of the three different cases that were heard concurrently by the Court of Appeal, two had come through Germany and one through France as countries of first entry. One case was that of a Somali woman who claimed a fear of persecution from a rival tribal group in a state whose authority had completely collapsed and where there was, in effect, no government whatever. The second applicant was a Tamil man from Sri Lanka who had been living in a

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part of Sri Lanka controlled by the Tamil Tigers, not by the government, and who claimed fear of persecution by the Tigers. The third case was that of an Algerian man who claimed fear of persecution by Islamic terrorists from which the government in Algeria were unable to protect him. In each of those cases the French and German Governments would have refused asylum because they were not cases of persecution by, or with the complicity of, the lawful government of those territories.

The Home Secretary originally decided to return the applicants to France or Germany, although in fact he had changed his mind before the Court of Appeal decision was given. Nevertheless, the Court of Appeal decided the case and the original decision was quashed by it on an application for judicial review. It was held that the Home Secretary was not justified in law in sending the applicants back because the Home Secretary could not have been satisfied that the third condition for return was satisfied; that is, that France or Germany would not return applicants to their home states in breach of the refugee convention as interpreted by the English courts. That decision of the Court of Appeal accords with justice and with common sense. What I am saying is not intended in any way as a general attack on the judicial systems of France or Germany. There is no objection to the way in which they interpret the refugee convention in cases of persecution by state governments; still less am I intending to say that there is any fundamental weakness in their judicial systems.

That being the present law, perhaps I may turn to the effect of the Bill. Clause 9 states that if the Home Secretary wishes to deport an applicant to another European Union state, which is the state of first entry, that state is to be regarded as a place from which that person will not be sent to another country otherwise than in accordance with the refugee convention. The Home Secretary has to certify that the other state has accepted that it is a responsible state under the Dublin convention, but he does not have to certify that the government of that country would not return the applicant to the country from which the applicant has fled. In other words, the courts must assume that the French and German authorities would not return the applicant to the country of origin in breach of the refugee convention, irrespective of whether or not that assumption is correct.

Clause 9 does provide a limited safeguard. It permits a right of appeal, under Clause 59 of the Bill, on the ground that the decision to return the applicant to the country of first entry is a breach of the applicant's rights under the Human Rights Act. The Government may say that that is adequate protection. That is not the case. The European Convention on Human Rights, incorporated under the Human Rights Act, is very weak on asylum rights. The right of asylum is not itself a convention right; nor is there any general protection against discrimination in the convention; and--I say in passing--there will not be any such general protection against discrimination as long as

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the United Kingdom Government maintain their opposition to the draft 12th protocol to the convention which, if adopted, would create a free-standing right not to be discriminated against.

The only relevant right which is clearly protected by the European Convention on Human Rights is the right to life. Clause 59 may, therefore, protect an applicant where his or her return would cause a serious risk of death. But the refugee convention is not limited to cases where there is a threat to life. In addition, the refugee convention gives refugees many substantive rights in the country of refuge which would not be available under the European convention.

In short, the position is that applicants for asylum in the United Kingdom presently have rights under both the refugee convention and the European Convention on Human Rights. Both treaties are accepted by the United Kingdom. If Clause 9 is enacted, applicants who have arrived via another European Union country will have no rights under the refugee convention. That will be so, even if the country of first entry interprets the refugee convention in a way that is rejected by our courts.

Unofficial reports from the Tampere conference suggest that it is proposed, in cases of non-state persecution, to lower the standards to those of France and Germany rather than raise them to those of the United Kingdom. We on these Benches would accept a reference to the European Court of Justice to determine the interpretation of the refugee convention in the European Union states. However, we cannot accept a political decision of the European Union governments to reduce the standards provided by the refugee convention. We believe that the provision in Clause 9 is in plain breach of our obligations under the refugee convention. We do not propose to press this amendment today because the decisions taken at Tampere are likely to be highly relevant and we shall not know what they are at least until a statement is made tomorrow. Unless the Tampere decisions are much more helpful than we expect, we shall return vigorously to the issue at Third Reading. I beg to move.

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