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Lord Goodhart moved Amendment No. 57:
- Page 41, line 34, leave out "two or more" and insert "all"
The noble Lord said: My Lords, Clause 71 substitutes a new Section 11 into the Immigration Act 1999 and describes standing arrangements as,
- "arrangements in force between two or more member States"—
The important difference is that the proposed new Section 11 will allow the Secretary of State to enter into a bilateral agreement with other states concerning the responsibility for determining asylum claims. In some circumstances that would allow the Secretary of State to remove a person to that state without an appeal. The European Union level agreements have scrutiny from the institutions of the European Union, in particular the European Parliament, although as third pillar agreements they do not formally involve co-decision, but bilateral agreements will not necessarily have any similar degree of scrutiny. We believe that that is a significant distinction between them.
Scrutiny is essential to ensure full compliance with international standards and to ensure that both Parliament and the public are aware of the nature of the proposed agreements and have an opportunity to comment on them properly. In this House we have a well established procedure for scrutinising third pillar documents or draft third pillar documents before they are finally adopted by the Council of Ministers, but we have no similar procedure for the scrutiny of bilateral agreements. That is a well known subject of complaint and one of the issues that is being raised in the course of discussing the future of your Lordships' House.
The new Section 11 will provide much less scrutiny for bilateral agreements than is presently provided, or would be provided in the future for EU-wide agreements. There is a real risk that bilateral agreements may seek to side-step any safeguards introduced by the Dublin convention or that have arisen as a result of case law. The United Kingdom courts have acknowledged that there is a wide variation in degrees of protection offered by other member states.
The report of the Joint Committee on Human Rights has said in response to the removal of persons under the manifestly unfounded certificate provisions that:
- "In our view, it should not be possible to remove a person before he or she has had the opportunity to challenge, before an independent and impartial tribunal, the Secretary of State's certificate asserting that the person's claim to have had a Convention right violated is clearly unfounded. Removing a person in such circumstances might sometimes give rise to a violation of ECHR Article 13 . . . We draw this matter to the attention of each House".
- "A person may be deprived of a direct appeal to an adjudicator on human rights' grounds before removal by a one-stop certificate (clause 84) or a clearly-unfounded certificate (clauses 82 and 101) or by a third-country certificate (clause 81). They may apply for judicial review of the certificate.
- The current policy in relation to judicial review applications is subject of a concordat with the High Court. Any person who is detained or has directions set for an imminent removal and who indicates a wish to apply for judicial review is given three working days to lodge an application with the High Court . . . We—and the High Court—consider that this provides adequate opportunity to seek the court's assistance".
The concordat will assist only where a person has indicated a wish to apply for judicial review. Only then can the three working days period be called upon. Under the current procedures there is the risk of an applicant not learning of the judicial review option before it is too late, or not managing to instruct a representative who can take the necessary steps.
The concordat is very much, therefore, an unsatisfactory alternative. All I can say is that it is better than nothing. If the noble Lord, Lord Filkin, can give us some undertaking that that will apply to bilateral agreements, that would at least be of some help.
Lord Bassam of Brighton: My Lords, the amendment would make any arrangement made with another EU member state for the return of asylum seekers subject to the approval of each House of Parliament. I am not sure that that is necessarily the most efficient and effective way to achieve an objective.
We do not agree that standing arrangements that we might make with any member state or states should require the approval of both Houses of Parliament. That seems to be a rather cumbersome approach.
The standing arrangements referred to in the new section apply specifically when the member state, with which an arrangement has been made, has accepted that it is the responsible state in relation to the claimant's claim for asylum. No arrangement under the clause can be entered into unless that condition has been fulfilled. I do not think that it is necessary to seek the approval of Parliament, therefore, for arrangements to carry out such removals to safe third countries.
Given the level of protection of fundamental rights and freedoms by the member states of the European Union, member states can be regarded in our view as constituting safe countries for all legal and practical purposes in relation to asylum matters. Any such standing arrangements should therefore benefit from the automatic safe third country provisions envisaged in new Section 11 of the 1999 Act. I understand why the noble Lord is concerned about that, but we think
that the arrangements that we have in place and the concordat provide adequate protection. I hope that the noble Lord will feel able to withdraw the amendment.10 p.m.
Lord Goodhart: My Lords, I must say that I am somewhat disappointed by that response. It is not enough to say that those are all safe countries, because, as is well known, the House of Lords has held that, in certain circumstances, Germany and France are not necessarily safe third countries for return. That is likely to become a much more serious problem if, as now seems highly probable, 10 further candidate states are admitted to the European Union at the end of this year or shortly thereafter. Any bilateral agreement should receive the same sort of scrutiny as would a third pillar agreement that covers the whole of the European Union.
On the concordat, we are grateful at least for small mercies. At this time of night, I shall not seek to divide the House, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 109 [Fee for work permit, &c.]:
Baroness Anelay of St Johns moved Amendment No. 59:
- Page 57, line 32, at end insert ", but no fee shall be payable by non-profit organisations"
The noble Baroness said: The amendment would ensure that non-profit-making organisations would not be subject to charges for the consideration of applications for immigration employment documents. I raised the issue in Committee, when the Minister was asked about the consultation that was under way, and he told me that it would progress during the summer. Indeed, this week, on 7th October, I received a letter from the Minister in another place, Ms Hughes, to say that the analysis of the consultation had been in the Library since 27th September. So it has made it into the public domain. I am grateful to the Government for sending me a copy of the document although it reached me only last night while we were in the Chamber, so I cannot say that I have completely digested the results.
What is the Government's response to the analysis? One page of the document describes the overview, but following the analysis of the consultation, can the Government assure the House that no fees will levied on not-for-profit organisations? I beg to move.
Lord Bassam of Brighton: My Lords, the noble Baroness raised the issue of the outcome of the consultation. The Home Secretary fully and carefully considered the analysis of the findings and decided that there was no evidence to support a wide-ranging exemption for not-for-profit organisations from the planned charge for the consideration of work permit applications.
Because of their provisions, we propose to exempt prospective employers of nationals of countries that have signed and ratified the Council of Europe charter
or the European Social Charter in its revised state. That does not include nationals of member states of the EU, who are not subject to the work permit regime. Currently, those signatory countries make up approximately 5.5 per cent of all work permit applications received. A list of those countries is available. We do not propose to exempt any other applications at this stage. Although we are not planning to exempt non-profit making organisations at this point, the clause allows us the flexibility to introduce exemptions in the future, if they are required or desirable. A view has been fixed now, but it may not persist for ever.The clause allows for exemptions to be included in regulations enacted by statutory instrument. By allowing amendments to secondary legislation, rather than in primary legislation, we will be better placed to deal with changes in the labour market. It gives us greater flexibility to respond to circumstances that may make certain exemptions from fees desirable from time to time.
I am sure that the noble Baroness will not be entirely happy with what she has heard this evening across the Dispatch Box. However, that is the conclusion that we have reached. We have the flexibility to issue exemptions in future, so I suggest that the noble Baroness might like to withdraw the amendment.
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