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Lord Filkin: My Lords, I am happy to respond to both points. In answer to the question posed by the noble Viscount, Lord Bridgeman, about what action has been taken following the comments of the noble Lord, Lord Carlile, the new rules take them on board. They include provision for paper reviews; cases may be heard together; and the rules governing communication between the special advocate and the appellant following disclosure of closed material have been clarified.
The question of the noble Lord, Lord Dholakia, perhaps goes less to the rules themselveswhich are, of course, the subject of our debatethan to whether SIAC's procedures and the nature of appeals from the three types of cases to SIAC are necessary. With the respect always due to the noble Lord, that returns to the nature of the Act itselfor the sequence of three separate Acts that have chosen to put those powers and duties on SIAC and to establish the process of the special advocate.
Rather than wearying the House with great detail, the rules attempt to balance liberties. They attempt to balance the need to protect the liberties of British citizens in generalin circumstances in which one believes that there may be some threat to their freedom and liberty as a consequence of the extreme circumstances and state of emergency in which we livewith the rights and liberties of a person whom the state has, in its opinion, a valid reason to believe to be, under one of the legs, a serious and present threat to the security of British citizens.
The rules try to square the circle of those two conflicting liberties by trying, for example, to give someone who is being detained under the Anti-terrorism, Crime and Security Act 2001 a right of appeal. It does so in difficult circumstances because it
I am sure that in the present circumstances I do not need to go into detail about why that threat is real rather than theoretical. In such circumstances, intelligence sources are a crucial part of the state's armoury in trying to protect its citizens from extreme or vicious attack.
As the House knows, the process is an attempt to ensure that there is a suitably qualified person to ensure that the interests of the appellant are properly represented, who can read the confidential evidence and who can argue the case before SIAC in that person's interest. As I think is known, under Rule 36, the special advocate cannot communicate about the proceedings after seeing closed evidence. For the reasons that I have given, it is important that there is no risk of disclosure. There is no evidence that that procedure does not work. However, there is provision for SIAC itself to approve communication if it considers it necessary under Rule 36(4).
Having said all that, the noble Lord, Lord Carlile, is in position on those issues. He has already considered some of them generally; I think that the House has appreciated his report. There will be further opportunities. We recognise that the measures are strong; we believe that they are necessary. The order seeks to put clear rules before SIAC in the interests of clarity, justice and the appellant. In that spirit, I very much hope that the House will accept that they represent progress, even though I might not necessarily convince everyone that the original legislation was desirablealthough I firmly believe that it is myself.
The noble Lord said: My Lords, I shall start by reminding the House of the context of this debate. The recent publication of the asylum statistics for 2002 demonstrated to us all the scale of the challenge faced by Britain and the need for robust and radical measures to reduce the number of asylum claims. The Government, anticipating the nature of the problem, took a range of measures to grip it. They included the closure of the Sangatte camp through joint working with France; the significant extension and strengthening of our border controls so that they operate on French soil; the adoption of new benefits arrangements; the acceleration of decision-making, with 76 per cent of new substantive asylum applications received in the first half of last year
The House is well aware from our debates on the NIA Bill that there are too many unfounded asylum claims. In 2002, about two thirds of claims were refused outright at the initial decision stage, and only around 10 per cent qualified for asylum. A significant number of the rest were clearly unfounded, which is unacceptable. The process incurs a considerable amount of public expenditure. For an individual family receiving both accommodation and subsistence support, support costs alone are some £10,000 a year. The processing of very many unfounded claims diverts resources away from processing the claims of refugees. Furthermore, it destroys the credibility of the asylum system in the eyes of the public, the implications of which are of considerable concern to many noble Lords. For those reasons, it harms genuine refugees, who may be tainted by the public's perception of the system.
That is the difficult world context in which we must consider the non-suspensive appeal provisions in the Nationality, Immigration and Asylum Act 2002. As noble Lords who were all active in debating the Act will recollect, it contains two key elements for dealing with unfounded asylum or human rights claims. First, it provides for a clearly unfounded claim to be certified such that a person could appeal against the refusal of their claim only after they had left the United Kingdom. Secondly, it identifies 10 states from which the majority of claims were clearly unfounded.
We have taken what I hope noble Lords will agree is a sensible approach to implementing the new powers. We have devoted our energies to applying the NSA powers to claims from the 10 listed statesalone, initiallyand assessed their effectiveness over a four-month period. They could have been applied more generally, but we thought it wise initially carefully to bed in the process, listening to noble Lords' concerns about the measures by applying them to the 10 listed states. Today we have several months' experience to draw upon and can thus assess how successful the new provisions have been. So far, all the evidence is that they have been highly successful.
We have applied several tests in assessing whether the provisions have worked. The first is that the number of claims from the 10 countries has declined quite dramatically. That is illustrative evidence that a high proportion of claimants in the country were trying it on to see whether they could use the asylum route to become economic migrants. For example, in September and October 2002, there were well over 250 claimants a month from the 10 listed countries. Although the figures are not final, around 40 claims were made in January. So there has been a considerable reductionfrom well over 250 to about 40. The figures support the view that virtually all claims made by residents of those 10 countries are unfounded and that people stop applying when they know that their unfounded claims will be dealt with quickly.
The second question is whether the procedures are working well. A concern expressed in the House was whether we would have in place procedures that ensured high quality decision-making. So far the procedure has stood up to the test, and we are optimistic about it. All applicants have access to legal advice and have their claims properly considered, with an opportunity to provide any evidence they have to support their claim. All decisions are checked by at least two officers, both of whom have been specially trained on the non-suspensive appeal provisions. The fact that a person is resident in a listed country does not result in a presumption that their claim is clearly unfounded from the outset, nor should it.
Nor are such claims automatically certified. A decision on certification is taken only after the claim has been investigated on an individual, case-by-case basis and assessed objectively. As one would expect, the great majority of claims are certified because of the general safety of the countries from which applicants apply. But that is not a sufficient test in itself. The individual circumstances must also be considered. Over this period, only 2 to 3 per cent have not been certified. That proves the point both that the vast majority of cases were judged to be valid, non-suspensive ones. But they were not treated so universallysome were not so certified.
In the January case of ZL v VL, the Court of Appeal, headed by the Master of the Rolls, unanimously dismissed a challenge to a decision of the High Court not to grant permission for judicial review against a certificate. In doing so, the court dismissed claims that the procedures at Oakington were not up to the mark. It said:
Finally, we are removing a significant majority of those whose claims have been rejected. We are not complacent about that. We have no hesitation in saying that the NSA process is working and the procedures have shown themselves to be fair.
Having spent four months monitoring the scheme and implementing it carefully, it is time to consider whether it should be extended to other states. A prerequisite of the Act for any country to be added is that it meets two tests. The Secretary of State must be satisfied, first, that there is in general in that state no serious risk of persecution of persons entitled to reside in that state or part, and, secondly, that removal to that state or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the human rights convention.
In addition to applying the legal test, we have taken account of the statistical evidence at decision-making and appeal stages and of the number of applications received from those potential countries. We have also had regard to the intention to expand the non-suspensive appeal process in a measured way. We have not, therefore, felt obliged to include in the draft order every state that might meet the legal test. We have included only those where it seems that it did meet the test and where the numbers made it sensible to do so.
Bearing all those factors in mind, we decided that seven states should be included. They were selected on an individual basis following the assessment process that I described. They should not be seen as a group, except that they have met the test and there would be an apparent benefit in their being added to the list of non-suspensive cases. We are satisfied that in all those states there is in general no serious risk of persecution, and that removal to them would in general not breach the United Kingdom's ECHR obligations. We do not assert that the seven states are 100 per cent safe for all residents at all times. No state can claim to be 100 per cent safe. We never argued for that to be the case for the 10 EU accession states listed in the Bill. Indeed, the statute from which I read earlier does not even require that. It uses the term "in general" rather than "universally" the case. However, they are places where persecution and human rights breaches are rare, and, for those reasons, the further seven states merit inclusion on the list.
I must turn to an area of some embarrassment and offer an apology to the House in one respect. When we discussed the issues in the Bill, the impression was created by the Government that, although the 10 accession states were listed in the Bill, the Bill gave a power to add subsequent states. I need not go into the exact detail of what was said, but it is clear to me that the House was under the impression from what I said in this House and what my honourable friend Beverley Hughes, the Minister of State for Citizenship, Immigration and Community Cohesion, said in another place that we expected that, before adding further states, we would, as part of the process, be able to seek the advice of the advisory panel on country information.
We have, in a sense, been under the pressure of needing to move forward and address the scale of the problem that we face in trying to separate genuine asylum cases from economic migrants. My embarrassment is to find myself before the House at a time when, due to the pressure of circumstances, we have had to add seven more states to the list, although the advisory panel on country information is not yet up and running. I shall not labour the point, but the House will be aware of my embarrassment in that respect.
We are working systematically through the provisions of the Bill to implement all of them at the earliest opportunity. The House will know that over 70 per cent of the Bill's provisions will have been implemented by tomorrow, 1st April. However, when, in my preparation for the order, I became aware of the circumstances, I decided to bring to the House the best information that I could. I have discussed the issue with officials and with
The panel's first meeting could then take place as soon as possible thereafter, by the summer, taking account of the wishes and commitments of the chair and members. We intend to move forward vigorously on the matter, and the House will accept my apologies for not having had the panel in placedue to the pressure of work and the pressure of circumstancesbefore adding to the list.
The function of the panel will be to consider and make recommendations to the Secretary of State about the content of country information. For any states that we consider adding to the list after the panel's establishment, we will, as promised, invite comments from the panel about the country information on which we propose to make our decisions. That information, as is the case for all countries, will be in the public domain. In respect of the seven states that we propose to add by the order, the Secretary of State will have an ongoing obligation to keep under review whether they continue to meet the test set out in Section 94 of the Act for inclusion in that list. The country information for those states will, of course, be the crucial component that must be kept under review, and the views of the panel on the content of that information will be taken into account for those seven states as it will for other countries.
In view of the successful operation of the safe country procedures to date and the successful outcomes in the courts, we decided that it would be appropriate to take a measured step in adding to the list at this stage. I have said that the panel will be set up as soon as possible, and we will have regard to its comments on country information relating to the seven states or any future ones. I have already mentioned the procedural safeguards that apply to the consideration of claims from residents of listed states. The same procedures will, of course, be in place for the additions to the list. If a claim, after individual consideration, is held not to be clearly unfounded, it will not be certified. If a claim is held to be well founded, as some will be, leave to enter or remain will be granted.