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Lord Brooke of Sutton Mandeville: My Lords, mine is a more modest question, but I remain a little bemused about why the title in Clause 81 remained the same after government Amendments Nos. 20, 22 and 23. My question relates to Amendment No. 32, which takes out the original words, which ended at the end of line 23 with the conjunction "and". The words that replace them do not return the conjunction "and". Is that significant? If not, why was "and" included in the first place? If there is significance, what is it?
Lord Bassam of Brighton: My Lords, I am most grateful to the noble Lord, Lord Kingsland, for asking what seems a very simple question. I hope that my response is equally simple. It is apparently a drafting amendment, because the wording was different and should not have been. That is what it amounts to. The references should coincide with the decision which the appeal is against. That is the simple explanation.
I do not have an answer for the noble Lord, Lord Brooke, as to why the word "and" was not replaced. If I receive an answer very shortly, I shall endeavour to provide it to the noble Lord—and I have just received the answer. The change was made for clarity of drafting and there is no change in effect.
On Question, amendment agreed to.
Clause 87 [Visitor or student without entry clearance]:
Lord Bassam of Brighton moved Amendment No. 28:
- Page 51, line 1, leave out from "on" to end of line 2 and insert "any or all of the grounds referred to in section 82(1)(b), (c) and (g)"
On Question, amendment agreed to.
Clause 90 [Appeal from within United Kingdom; general]:
Lord Bassam of Brighton moved Amendments Nos. 29 and 30:
- Page 51, line 28, leave out paragraphs (a) to (e) and insert "an immigration decision of a kind specified in section 80(2)(c), (d), (e), (f) and (j)"
- Page 52, line 1, leave out from "decision" to end of line 14 and insert "if the appellant—
On Question, amendments agreed to.
Clause 91 [Appeal from within United Kingdom: "third country" removal]:
Lord Bassam of Brighton moved Amendments Nos. 31 to 33:
On Question, amendments agreed to.
Clause 92 [Appeal from within United Kingdom: unfounded human rights or asylum claim]:
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before calling Amendment No. 34, I have to inform your Lordships that if it or Amendment No. 35 is agreed to, I will not be able to call Amendment No. 36 under the pre-emption rules.
Lord Goodhart moved Amendment No. 34:
The noble Lord said: My Lords, in moving Amendment No. 34, I wish also to speak to the other amendments in this group which are in the names of my noble friends and myself; namely Amendments Nos. 37, 38, 38A, 38B, 39, 39A, 40 and 43A.
This group of amendments concerns Clause 92. The purpose of the clause, as it now stands after its amendment in Committee, is to exclude the right of appeal on asylum or European convention grounds in cases which the Home Secretary certifies as clearly unfounded. That test is indeed strengthened for the countries specified in subsection (4), which is commonly known as the "white list". The Government, according to the report of the Joint Committee on Human Rights, apparently think that there is still a right to appeal from outside the United Kingdom and that all that has been excluded is the right to an in-country appeal. However, I have found it impossible to see how Clause 92 can have that effect. I agree with the Joint Committee that it appears pretty clearly to exclude any right of appeal in those cases, either in-country or outside the country.
The amendments in this group have a number of different purposes. Amendment No. 34 would allow all applicants who face a return to their country of origin to have a right of appeal which would in fact be an in-country right of appeal on either asylum or ECHR grounds. Amendments Nos. 37 and 38 would mean that the "white list" could operate only in respect of asylum claims and not claims made under the Human Rights Act. I have no hesitation in conceding that both these amendments are effectively wrecking amendments. We feel very strongly indeed that there should be a right of appeal in all these cases. We opposed the provision in Committee, and effectively we oppose it again now.
Amendments Nos. 38A and 38B would have a more limited effect as they would delete two countries from the "white list". The "white list"—and particularly a number of those countries—has been the subject of adverse comment in the Joint Committee's report. I should apologise to the Republic of Cyprus for the fact that it appears in Amendment No. 38A. That was not intended; it should have been the Czech Republic. Unfortunately, somewhere between my drafting and the Public Bill Office, it appeared as Cyprus rather than the Czech Republic.
Amendment No. 39 removes the power to add countries to the list by statutory instrument. Amendment No. 39A, a relatively minor amendment, prevents the order being made under subsection (5) without prior consultation.
All these amendments are covered by the report of the Joint Committee. In paragraphs 32 and 33 of its report, the Joint Committee points out, as I said, that the effect of Clause 92 is to exclude any right of appeal either inside or outside the UK to an adjudicator on grounds that removal from the United Kingdom would breach either the refugee convention or ECHR rights. The Joint Committee goes on to say that that would result in inadequate protection of human rights. At the end of paragraph 32, the Joint Committee states:
As I said, Amendment No. 34 ensures that the right of appeal will remain. Amendments Nos. 37 and 38 will retain the right of appeal for claims based on the European Convention on Human Rights. I accept that most claimants would appeal on both grounds. So the amendments would very considerably limit the effect of the clause as it now stands.
On the "white list", the Joint Committee said:
At the end of paragraph 37, the Joint Committee goes on to say:
Amendment No. 39 omits the power to add countries to the list by secondary legislation. On that matter, in the last sentence of paragraph 37, the Joint Committee said:
Amendment No. 39A provides in the Bill for something that the Home Secretary said that he intends to do: consult with an appropriate advisory group before adding a new country to the list. In paragraph 40, the Joint Committee states:
Amendment No. 40 is purely consequential. However, Amendment No. 43A, which I have not mentioned previously, is an important one because it would prevent the removal of claimants to a country of origin while judicial review proceedings are under way. That is dealt with at paragraphs 38 and 39 of the report of the Joint Committee. Paragraph 39 concludes:
There has been broad criticism of the whole concept of safe country lists. That was expressed at some length in the debate in Committee and, therefore, I do not intend to repeat it now. That criticism comes not only from the Joint Committee but also, as has been pointed out, from the UN High Commission for Refugees and the European Union Select Committee of your Lordships' House.
We believe that Clause 92 is a deeply unsatisfactory clause because of its inclusion of a safe list of countries but also, perhaps more importantly still, because in its
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or
(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
Page 52, line 16, leave out from "person" to "if" and insert "may not appeal under section 80(1) while he is in the United Kingdom"
Page 52, line 21, leave out paragraph (a) and insert—
"(a) the appellant has made a human rights claim,"
Page 52, line 24, leave out "claim mentioned in paragraph (a)" and insert "human rights claim"
Page 52, line 30, leave out subsection (2).
"In our view, the removal of any right of appeal results in there being inadequate protection for the human rights of claimants".
"The presumption that a country is safe is of questionable validity. As observed on recommitment, the United Nations High Commission for Refugees ... does not accept that any country can be declared 100 per cent safe, a view shared by the House of Lords Select Committee on the European Union. There is also widespread discrimination against certain groups, such as Roma in the Czech Republic and the Slovak Republic".
It is that reference that has led us to choose those two countries as the subject of our Amendments Nos. 38A and 38B. I should say, however, that—the rather
lengthy—footnote 41 to the Joint Committee's report indicates that a number of the other candidate states have a less-than-ideal record as well.
"in view of the well-authenticated threats to human rights which remain in the states seeking accession to the European Union, we consider that a presumption of safety, even if rebuttable, would present a serious risk that human rights would be inadequately protected. We consider that the presumption of safety is unacceptable on human rights grounds, and we draw this to the attention of both Houses".
That is a very strong comment indeed.
"For the same reasons, we have the same reservation about the power to add states to the list of 'safe states' by subordinate legislation".
"We note, in addition, that clause 92 as amended does not impose any duty on the Secretary of State to consult the proposed independent advisory group, to which he referred in his article, before adding new countries to the list of presumptively safe states. Creating a presumption that a place is safe for asylum-seekers to return to has major human rights implications. The step should not be taken unless the evidence of safety is very clear. Advice from an independent advisory group would be a valuable safeguard for human rights in the face of a power such as that proposed in the amendment. We consider that clause 92(5) should be amended so as to require the Secretary of State to obtain, and have regard to, advice from the independent advisory group before adding states to the list of those which are presumed to be generally safe. We draw this to the attention of each House".
"We consider that clause 92 should be amended to provide the protection which the Secretary of State wrongly considers the clause, as amended on re-commitment, provides, and should prevent a person from being removed from the United Kingdom without being allowed an appeal unless an application for judicial review of the Secretary of State's certificate would have the effect of suspending the removal pending the determination of the application for review. We draw this to the attention of each House".
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