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Lord Lester of Herne Hill: My Lords, I follow that. I was not dealing with the out-of-country or in-country point.
Lord Falconer of Thoroton: My Lords, I shall deal with the other point in correspondence. The critical point is the one that informs this report, which suggests that any right of appeal was abrogated. That is not right. That is not the only point that was made, but it informs the first three points.
The fourth point that the committee makes—from paragraph 35 onwards—is that it does not like the idea of safe country lists because, it says, no country is completely safe. We do not dispute that, but we follow the declaration made by all current members that there should be a presumption that, if a claim is made from one of the accession states, it is clearly unfounded.
We listened carefully to the points made and anxieties expressed. Plainly, those views are genuinely held. Our "clearly unfounded" provisions are a vital part of our package. We listened particularly carefully to my noble friend Lord Clinton-Davis who spoke
with realism. I am sure that we will continue with the provisions, subject to the agreement of Parliament at Third Reading, but, before that stage, we will consider carefully the points that have been made.
Lord Avebury: My Lords, the Minister said nothing about the Refugee Legal Centre information that I sent him, which included details of the percentage of cases that were successful on appeal, after certification. Should I take it that he has no answer to those points?
Lord Falconer of Thoroton: My Lords, I put before the House the basis of the procedure that we propose to follow. I put before the House the extent to which there are sufficient protections, picking up, in particular, the point made by the noble Lord, Lord Lester of Herne Hill, that judicial review provides an effective remedy. Noble Lords must consider whether the procedure is appropriate.
Lord Clinton-Davis: My Lords, the noble Lord, Lord Hylton, and I raised issues that were, appropriately, put before the House by the Black Women's Rape Action Project and Women Against Rape. Will the Minister have the courtesy to say something about them?
Lord Falconer of Thoroton: My Lords, I apologise to the noble Lords, Lord Hylton and Lord Clinton-Davis, for not dealing with it as I intended to. At Oakington, for example, there are on-site legal representatives and an on-site medical centre. There are case workers who are trained to deal with interviewees who suffer from the sort of trauma referred to in what the noble Lord, Lord Hylton, called the bright yellow briefing.
If the trauma relates to past torture, which is the sort of trauma to which both noble Lords referred, the Medical Foundation for the Care of Victims of Torture can be contacted. The claim would not be decided until we had the views of the foundation, a body for which both noble Lords have the greatest respect. If the foundation indicates that there is any sort of history or risk of the sort to which the noble Lords referred, the case would not be appropriate for the "clearly unfounded" procedure. I apologise again for not dealing with that point before.
Lord Goodhart: My Lords, I am grateful to all noble Lords who spoke. Basically, all have been critical of the Government's stand on the amendments.
I shall start by dealing with two relatively minor matters. One is the interpretation of Clause 92. The Minister said that the Joint Committee on Human Rights had got it wrong by saying that the clause prohibited out-of-country appeals and not just in-country appeals. I cannot comment on that view at this stage, as it would require a detailed analysis of what he said and of the Bill.
The second point, which is less minor, relates to the "white list" or safe country list. The Minister—understandably, for it would have prolonged an already lengthy debate—did not really challenge the argument of principle that safe country lists were never appropriate. He concentrated on the position of the Czech Republic, Slovakia and the other eight candidate countries on the list. The Minister said that those countries would not have got on to the list if their human rights records had not been satisfactory. I do not find it easy to agree with that.
None of the states has a record so bad that it would not be considered a suitable member of the European Union. However, that is not the same thing as saying that those countries' standards are already up to the level of the existing member states. There are serious concerns about some of the countries. There is a political imperative to get them into the European Union, and it may be that entry into the EU will improve those standards. I am not suggesting for a moment that any of those countries are not suitable members of the European Union, but that is not the same as saying that they are appropriate countries for inclusion on any safe list.
The fundamental issue is whether we should have certificates stating that claims are manifestly unfounded, which would prevent in-country appeal—at least—to an adjudicator. The Minister said that a significant number of asylum claims were unfounded. He thought that no one in the House would disagree with that. I do not disagree; there is no doubt that many claims are unfounded. However, that is not the question: the question is whether those identified by the Home Office as having made manifestly unfounded claims will always be correctly identified. That is a different question.
In such cases, access to judicial review is not the equivalent of a right of appeal. The decision is taken by a government official; it is an executive decision. The Home Office official who makes the decision is not a tribunal and is not subject to the procedural rules that apply to the courts. Such cases require an independent and impartial adjudicator who can review the case on its merits. That, after all, is what happens in cases relating to benefit claims. There is a benefits tribunal, which hears claims made under the social security Acts and can review on its merits the decision of the official in the Department for Work and Pensions who took the decision.
I therefore believe that what is needed is not simply judicial review, but, as a step open to anyone whose asylum claim is dismissed by an official, a chance to take the case to an adjudicator who as an independent and impartial person can review the executive decision to refuse asylum. For that reason, I believe that Clause 92 is deeply unsatisfactory.
I hope that even at this late stage the noble and learned Lord and the Government consider that there are steps that could be taken before Third Reading to improve Clause 92. I was particularly interested in what was said by the noble and learned Lord, Lord Archer of Sandwell. He spoke an enormous amount of
wisdom and sense. If I were to move to a vote on Amendment No. 34, I would very much like to have him on our side. Clearly, that will not be the case—I do not say that ultimately it will be, but I hope that it will—until all avenues for consideration have been explored.For that reason, and because we are well past the hour at which one can expect a truly representative vote, it is my intention to ask the leave of the House to withdraw the amendment. However, in view of the wide degree of support it has received from around the House, I hope that it will be possible to bring it back at a more viable time at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned until 9.42 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.42 to 9.42 p.m.]
Lord Kingsland moved Amendment No. 36:
- Page 52, line 30, at beginning insert "Subject to subsection (10),"
The noble Lord said: My Lords, Amendments Nos. 36, 41 and 43 fulfil the commitment given by my right honourable friend Mr. Oliver Letwin during Report stage in another place on 11th June. It was as follows:
- "there is no question that returning a person to France, Denmark or any EU country, for example, is anything but a perfectly legitimate act for the British state. It runs no risk of compromising that person's life or liberty . . . I am determined that we should give the Home Secretary the support that he deserves in regard to those provisions that are right and which make it possible to imagine that bilateral agreements will come back into play. However, I intend to preserve our determination to avoid, if we can, compromising improperly the safety of individuals through those subsections that pose a threat to their safety".—[Official Report, Commons, 11/6/02; col. 805.]
The amendments seek to ensure that, when the Secretary of State decides to remove such an asylum seeker before that asylum seeker has brought an appeal, the removal may only be to a country which has been certified as safe and from which the asylum seeker has a reasonable opportunity to exercise his appeal rights. I anticipate that there would be relatively few problems, if any, with certifying other EU member states, or even candidates for EU membership, as "safe" countries under the terms of the amendment.
The amendments would, however, allow those asylum seekers whom the Secretary of State proposes to remove to countries which are not safe, or from which they could not reasonably exercise their appeal rights, to have their appeal considered by the judicial authorities in the United Kingdom before removal takes place. Even the Minister will admit that the Home Office occasionally makes mistakes. I am sure that all sides of your Lordships' House will agree that it would be regrettable, indeed, if a mistake could not be rectified simply because an asylum seeker had been returned to a country from which he found himself unable to exercise his right of appeal—a right that even the Home Secretary does not propose to remove altogether.
The noble and learned Lord, Lord Archer of Sandwell, has taken a different approach with his Amendment No. 35, which would give the right of appeal to an adjudicator against a "clearly unfounded" certification by the Secretary of State. As I understand it, such a person would, even under the Government's proposals, be able to bring judicial review proceedings in respect of the certificate. I recognise that appeal and review are two very different things, but none the less there would be a remedy in cases where the Home Office had clearly and unreasonably got things wrong.
Our amendments, on the other hand, seek to ensure that in the case of France, Denmark and other EU member states the Bill can be the basis for the return of the bilateral agreements to which my right honourable friend referred in another place, while also seeking to ensure a measure of safety in respect of countries where a person would be at risk.
It is, indeed, a difficult balancing act. But, in my submission, our amendments present a solution—perhaps not the purest form of solution, but a solution none the less—to the problems which the non-suspensive appeals provisions in the Bill may present in future, while retaining the possibility of swift removal in appropriate cases. I hope that the noble and learned Lord the Minister and others among your Lordships will be able to support the amendments. I beg to move.
9.45 p.m.
Lord Falconer of Thoroton: My Lords, we welcome the fact that these amendments recognise the value of introducing a list of safe countries. As that is common ground between us, and as I spent some considerable time before supper and last week explaining the Government's position on the matter, perhaps I may concentrate on those areas where we differ from what is proposed in the amendments.
The main difference is that they would close the door to the use of non-suspensive appeals in respect of any person who is not to be returned to a country on the safe list. This would limit the scope of the provision unnecessarily. Just as there will be occasions where it is not appropriate to return an applicant to a country which is on the safe list, equally there will be occasions where it is appropriate to certify a claim from an applicant who does not come from such a country.
It is quite possible for a person from any country to come to the United Kingdom, use the magic word "asylum", and then be unable to provide any information to substantiate their need for protection. I gave examples of that before supper. We need to have scope to continue dealing with clearly unfounded claims, whoever makes them, even if the emphasis may be on claims made by those on the safe country list.
There are also some other differences in these amendments. Whereas the amendments that we made last week are concerned solely with safe countries of origin, the amendments that we are now debating also cover situations where a person is being removed to a third country from which he or she can safely appeal against the refusal. Since it is the number of applicants from safe countries making unfounded asylum claims that is causing the problem, we think it right to focus on that aspect.
That difference in emphasis partly explains another difference; namely, the tests for using the order-making power. We believe that the reference that we have to human rights is to be preferred, because the key issue is whether removal would be a breach of the United Kingdom's obligations under the ECHR. That is not identical to the question of whether a person might have his or her human rights infringed in the country to which we are seeking to remove that person.
I agree that the reference to human rights breaches used in these amendments makes some sense in the context of non-suspensive appeals relating to appeals from third countries. But I argue that it is not appropriate for safe country of origin cases.
Furthermore, in safe country of origin cases, the issue of a person being able to pursue an appeal from abroad does not arise in the same way as it does in a third country appeal case. In safe country cases it will be implicit in the decision to issue a certificate that the country to which the person is to be returned is a safe one. For third country cases, we do not think that creating an order-making power of the type proposed would add value to that which is already in the Bill; namely, subsection (7), which sets out the two conditions of which the Secretary of State must be satisfied if the certification powers in Clause 92 are to be used in such cases. These are: that the person is not a national or a citizen of the country of intended removal; and that there is no reason to believe that the person's ECHR rights would be breached in that country.
The noble Lord, Lord Kingsland, said that it would be unfortunate if an error could not be rectified by a person having an effective overseas appeal. For clearly unfounded certificates, the presence of judicial review provides an effective remedy against any error by the Secretary of State or the IND. I elaborated on that at some length before the House adjourned for dinner.
As to third country certificates, the Bill already requires that a certificate can be issued only where the Secretary of State is satisfied that a person's ECHR rights will not be breached in the country from which he or she appeals. So that covers both situations.
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