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Lord Ackner: My Lords, I do not believe that anything I said in any way criticises that well established and well accepted point. But if you are

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going to deprive the citizen of the advantages of the decision of the Court of Appeal, you must do it in the proper way, not like this.

Lord Falconer of Thoroton: My Lords, I would not put it on the basis of depriving the citizen of the benefit of the Court of Appeal's decision. I put it on the basis that in so far as it is a matter where Parliament disagrees with the conclusion of the Court of Appeal, it does so on the basis of legislation which comes to a different conclusion.

The question of whether other member states can be regarded as safe third countries of asylum is properly one which Parliament may address in legislation. All member states are highly advanced democracies with independent courts and distinguished judges and advocates. Their vigilance in applying international law to the highest standard is surely a matter on which they can be expected to show a mutual trust. There is no international court dedicated to interpreting the 1951 convention and it is inevitable that national courts will develop case law in some respects differently or will arrive at similar conclusions but at different times. With asylum law being such an active and developing field, it would be astonishing if there were complete uniformity between all member states.

However, despite all that, the noble Lord, Lord Goodhart, argues that France and Germany cannot be regarded as safe third asylum countries because of the conclusion of the Court of Appeal in the cases to which he referred. That decision is subject to appeal to my right honourable friend the Secretary of State. However, I do not invite your Lordships to anticipate the outcome of that appeal, nor to hear the arguments that will be put forward on my right honourable friend's behalf, because this is not a court of law.

Instead, I suggest that we address the fundamental question: in the light of the rulings in France and Germany, do we regard those countries as fundamentally safe, in that they will not return to other countries people who are in genuine need of protection? That is the question, not what is the effect of differences in the law. That is just what the racketeers wish to take advantage of.

To answer the fundamental question, we need to consider the full range of measures of protection available in member states. The Court of Appeal's judgment was focused on the question of interpretation. In doing so, the court was examining the cases in the framework of the legislation set by Parliament in the Asylum and Immigration Act 1996. As we had agreed in court to consider the cases substantively, the Court of Appeal at no stage addressed the actual risk of the three individuals involved being returned to their countries of origin. The noble Lord, Lord Goodhart, nods. The court was

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not addressing the issue of whether they would be returned; it simply addressed the question: what did the refugee convention mean?

Like the United Kingdom and other member states, both France and Germany operate other forms of protection outside the 1951 convention. Both countries have provisions in their statute law which expressly deal with such alternative forms of protection. Both countries, as well as all other member states, are signatories to the European Convention on Human Rights. That convention has a supranational court overseeing its interpretation. Moreover, Article 3 of the convention focuses squarely on protection against inhuman or degrading treatment. The court at Strasbourg has found that to be an absolute protection. In that respect, the ECHR goes even further than the 1951 refugee convention.

I would not ask your Lordships to agree that other member states should be trusted to deal properly with the asylum seekers for whom they are responsible under international law unless we were confident, as a Government, that there was no risk in practice of those people being returned to face persecution.

Clause 9 is a bold provision, but it is entirely consistent with our international obligations. We face a clear choice. We can let Clause 9 stand part of the Bill and be ready to play our full part with our partners in the European Union in tackling the insidious abuse of asylum processes which undermines the protection of those genuinely in need; alternatively, as the noble Lord, Lord Goodhart, supported by the noble and learned Lord, Lord Ackner, proposes, we can vote to exclude the clause from the Bill and allow differences in the boundary line which member states draw between one form of protection and another to frustrate the operation of the Dublin convention. That would be to the benefit of no one except the abusers of the system and those who profit by exploiting them. I urge your Lordships to prefer the first option and to reject the amendment.

Lord Goodhart: My Lords, I do not dispute that there is abuse of the right of asylum, but that argument must not be used to prevent people who have a justifiable case from putting it forward. Non-state groups can, and plainly do, commit acts of persecution. France and Germany do not recognise that kind of persecution as coming within the refugee convention; the United Kingdom does, in my view rightly. It follows inevitably from those propositions that if the UK authorities return an applicant who complains of non-state persecution to a state which does not recognise that as coming within the convention, they are being required to act in a way that is contrary to their obligations under the refugee convention as interpreted by the Court of Appeal. While that is clear, and for reasons which my noble friend Lady Williams and I explained earlier we do not intend to divide the House on this occasion, it is certainly something to which we shall return on Third Reading. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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5 p.m.

The Attorney-General (Lord Williams of Mostyn) moved Amendment No. 14:

After Clause 11, insert the following new clause--


(“ .--(1) During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.
(2) Subsection (1) does not prevent--
(a) directions for his removal being given during that period;
(b) a deportation order being made against him during that period.
(3) But no such direction or order is to have effect during that period.
(4) This section is to be treated as having come into force on 26 July 1993.").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 14 with which is grouped Amendments Nos. 14A, 14B, 14C, 74, 304 and 315. Essentially, this group of amendments repeals and re-enacts Section 6 of the Asylum and Immigration Appeals Act 1993 but with some important modifications. Noble Lords will be aware that at the moment Section 6 of the 1993 Act provides that someone who has applied for asylum may not be removed from and be required to leave the United Kingdom until he has been notified of the decision on his claim. This will continue to be the case under Amendment No. 14. However, the amendment goes on to provide that, nevertheless, it is permissible to set removal directions or to make--that is to say, sign--a deportation order in respect of the person concerned, although the direction or order will not have any effect until the individual concerned has been notified of the outcome of the asylum application.

The reasons are technical and I shall explain them briefly. Section 8 of the 1993 Act deals with appeals to a special adjudicator. There is no right of appeal against a decision to refuse asylum as such; rather, under Section 8(1) there is a right of appeal against refusal of entry. Under Section 8(2) there is a right of appeal against refusal to vary leave, and Section 8(3) provides a right of appeal against a decision to make a deportation order or to refuse to revoke one. Section 8(4) gives a right of appeal against directions for someone's removal as an illegal entrant. In each case the grounds for appeal are that to remove the person concerned, or to require the individual to leave, would be contrary to our obligations under the 1951 convention.

Section 6 means that someone who has applied for asylum cannot be required to leave until he has been notified of the outcome of that application. In the case of an illegal entrant, if the notices are served in person the immigration officer can hand the person concerned the letter explaining why the application has been refused, which brings to an end the period during which the person cannot be required to leave. He can then go on to set directions for that person's removal. The person can appeal to an adjudicator against the

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decision to give directions and the case comes before an adjudicator who assesses the merits of the claim to protection under the terms of the convention.

If the applicant is being notified by post, the position is more complicated. If the directions are a requirement to leave the UK, Section 6 in its present form stops the asylum decision and removal directions being sent to the applicant at the same time. This is because when the letter is sent the applicant obviously cannot have received the decision on his application. The immigration officer, therefore, has no power to make removal directions, but it is the decision to give removal directions which triggers the right to appeal. This bears most heavily on asylum applications from illegal entrants where about half the refusal decisions are served by post, but the principle applies also to other types of asylum application.

We therefore have two unattractive alternatives: either we have to serve notice of the asylum decision in person, which is resource-intensive and affords an opportunity for the person concerned to prolong the period during which he cannot be removed by failing to come in to receive the decision letter, or there is a situation in which the letter that refuses asylum is sent to the applicant, followed a couple of days later by a second letter which sets removal directions. Bureaucracy gone mad! From the standpoint of the applicant, he would have a letter saying that his asylum application had been refused but until he received the second letter in no way could he challenge that decision.

The government amendment allows removal directions to be given or a deportation order to be made before the applicant has been notified of the decision on the claim, although obviously the decision is taken only after the claim has been considered and the case worker has decided that the applicant is not a refugee. The directions or order do not take effect until after the subject has been informed that the application has been refused. Amendment No. 74, which is linked with this amendment, makes a corresponding adjustment to the protection from removal granted under the Bill to those who seek leave to enter or remain on ECHR grounds.

Subsection (4) of the main clause in this grouping provides that the provision is to be treated as having come into force on 26th July 1993. That was the date on which the 1993 Act itself came into force. For some years it has been the practice to serve by post letters that refuse asylum and give removal directions. In many, probably most, cases the person concerned will have appealed; the appeal may have been heard and the person concerned may have been removed. The legal advice we have received is that because there was no power to give removal directions at the time they were made, it is arguable that there was nothing to appeal about and those appeals are nullities. Those to whom this has happened have not been disadvantaged. They have been refused asylum and have appealed to an independent adjudicator who has considered the case and reached a decision on the evidence before him. There is nothing in terms of fairness to require them to

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be brought before an adjudicator to have the case considered a second time because the first appeal ought not to have been accepted as valid. We have therefore decided to take the pragmatic step, which we hope your Lordships will approve, of legitimising those removal directions and the appeals flowing from them retrospectively. Small consequential changes will be required at Third Reading if your Lordships approve this group of amendments.

It is probably convenient, subject to the view of the noble Baroness, if I deal briefly with Amendments Nos. 14A to 14C. I have given the explanation that stands behind our amendments. Amendments Nos. 14A to 14C, if carried, would mean that someone who had claimed asylum could not be required to leave until his application had been decided and there was either no appeal or an appeal had been determined. Amendment No. 14B, which seeks to delete subsection (2), would mean that removal directions that required an applicant to leave the country could not be set until the period of protection from removal had come to an end. We would be going round and round in circles. Bearing in mind questions raised earlier today in my absence--for which I apologise--I appreciate that there has been a relatively short time to consider some aspects of these matters. That is why I have sought to explain the deficiencies, as we see them, of Amendments Nos. 14A to 14C. I hope that that explanation is sufficient and that your Lordships will approve the amendments to which I spoke earlier.

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