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The key issue facing us and other member states is therefore to distinguish quickly and fairly between those who have well founded claims and those who do not. Sadly, our initial assessment is that the directives will make it harder, not easier, to achieve that aim. That is the hard-headed view we have taken. It is not fear of the Daily Mail, as the noble Lord, Lord Wallace, said.

The procedures directive is perhaps the more radical of the two. We have real concerns about many of its proposals, particularly restrictions on accelerated procedures and non-suspensive appeals. I know that the European Union Committee has, in the past, expressed concerns about the use by member states of accelerated procedures, as referred to by the noble Lord, Lord Jopling. An accelerated procedure is really nothing more than a way of deciding asylum claims more quickly than normal. Provided those subject to it have access to all the usual guarantees, there is no reason why an accelerated procedure should not be applied to any claim, as the current procedures directive

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allows. The new directive would allow this only in certain circumstances; for example, where the applicant comes from a listed "safe" country. That would stop us from operating our existing detained fast-track system (DFT), which provides fast and fair decisions on the applicants who go through it. It is an excellent way of managing the sort of asylum claims that are capable of being decided quickly and it also provides a deterrent to false claims as those making them will be refused quickly. The decisions it makes are fair-97 per cent of them are upheld on appeal. We therefore could not accept the restrictions proposed.

Non-suspensive appeals are a key tool that allows us to manage unfounded asylum claims. They are not given lightly. We have to be satisfied that an application is clearly unfounded-that is, so weak as to be bound to fail-before we can make the appeal non-suspensive. The directive would place additional and unnecessary restrictions on these appeals which would place an unnecessary burden on our asylum system and encourage unfounded claims. Other parts of the directive would create further restrictions. For example, more generous rules on translation will cost us probably in excess of £3 million a year. The attempt to specify in European legislation the training curriculum that asylum decision-makers should follow is a classic example of overregulation.

Overall, the directive, as drafted, strikes us as overcomplicated and overambitious. We have real doubts about whether it would be sensible to opt in in its present form. The new qualification directive makes fewer changes but three in particular cause us concern. The first and most worrying is the amended definition of a family member-in particular, its extension to include the parents of unaccompanied minors. This carries an unacceptable risk of requiring us to admit the parents of unaccompanied minors who are granted status. We fear that this would create an incentive for children to be sent on ahead to member states in the hope that they will be granted status and their parents will be able to join them later. That would introduce a new threat to the welfare of children by incentivising their separation from their family units. We are already extremely concerned about the number of children and young people sent to the United Kingdom and the risks they face in making the journey, in particular those who are trafficked. We believe that the proposals for family reunion would simply lead to more children being put at risk. We also fear this would lead to a big increase in the number of applications we receive from minors-currently about 3,500 a year or 12 per cent of our intake-with very serious financial implications, given that at the moment the Government spend more than £140 million a year on caring for these people.

We believe that the technical changes to asylum law that appear in Articles 7 and 8 referred to by a number of speakers risk leading to a big rise in the proportion of asylum claims that are granted. Of course, we have no problem with granting protection to those who need it-quite the reverse-but the people who may benefit from this would be those who do not need asylum because they can be protected adequately in their own country, either by a non-state agent or by relocating to another part of that country. We know that asylum intake is very sensitive to policy change in

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the UK. For example, it dropped sharply after we tightened our policy on permission to work and stopped automatically granting leave to remain to certain nationalities in 2002-03. Intake from Zimbabwe went up dramatically after a court judgment favourable to Zimbabwean asylum seekers in 2008.

Both directives are bound to be amended during the course of negotiations-as referred to by a number of speakers-both by member states in the Council and by the European Parliament. The debate is whether we should be inside or outside the tent. It is not, at this stage, possible to predict the outcome of these negotiations. Even if we were able to convince other member states to agree to remove those parts of the directives that we do not like, the European Parliament's approach to the asylum proposals to date indicates that it would be very likely to want to keep most of the original proposals, or even to go beyond them, and a compromise would need to be reached. This, in our view, means that there is a real risk that the directives eventually agreed will contain measures that we do not feel we can accept. Because of this, although we will reflect on the arguments that have been made tonight, we are minded not to opt in to the directives at this stage. That would not mean that we would be out of them permanently.

Under the treaties, we have the right to apply to take part in an instrument after it has been adopted if we have not opted into it from the start. If we did not opt in to these proposals, we would therefore remain engaged in the negotiations-not as fully as we could be, as has been said, but still able to influence them-and make our concerns known.

If the final directive addresses those concerns, we may well apply to take part. I can assure the House-

Lord Wallace of Saltaire: Can the Minister confirm that under that process we would ensure that we had much less influence over the final form of the directive, and would then have to accept what others have negotiated out of a process in which we had taken no part?

Lord West of Spithead: My Lords, the noble Lord is absolutely right; we would have less influence, but we would still have influence. This has been done in the past in that way.

I can assure the House that we remain committed to our international obligations towards refugees and asylum seekers, and to providing those who seek our protection with fast and fair decisions on their claims.

Whatever happens, we will also remain deeply involved in practical co-operation with other member states. We have already played a leading role in projects such as the European Asylum Curriculum, which helps to improve the training of caseworkers in Europe, and have provided bilateral support to member states experiencing pressures, such as Malta. We will continue to do that and, indeed, will seek to step up co-operation through our involvement in the European Asylum Support Office.

The noble Lord, Lord Jopling, and a number of other speakers mentioned the point about what happens to existing directives. Legally, our view is that if we do not opt in to the new directive, the old ones are repealed and will cease to bind the United Kingdom.

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We know that there is disagreement over this, as a number of speakers mentioned. There is no doubt that the committee and the Commission have a very different view from that of our Government, and it is arguable that it is right that that should be taken up eventually and will have to be determined by the courts.

The noble Lord, Lord Avebury, suggested that an asylum seeker in France could claim a right to move freely to the United Kingdom. This is, of course, not correct. Asylum status in France or any other EU country does not confer the right to free movement. Only European Union citizens and their families have that right.

Lord Avebury: Perhaps I may clarify that by saying what I meant, which was that once the asylum seeker in France had obtained permanent leave to remain there, and had applied for citizenship, he would be free to move anywhere in the European Union.

Lord West of Spithead: If my understanding is correct, once someone is a European citizen, he has freedom to move. That is correct-I accept that. I misunderstood the noble Lord.

The Government's approach to these directives is well balanced and in the national interest. However, we have not yet taken a final decision on the opt-in and will reflect very carefully on the points that have been made tonight. We will also, of course, communicate our decision to the European Union Committee-

Lord Dykes: Would the Minister not agree that that is not the real motivation-it is actually to keep the Conservative Party at bay in the coming weeks and months? There are, after all, only three Tories in the Chamber. Why is he so worried?

Lord West of Spithead: My Lords, I can assure the House that it is absolutely not just to keep the Tory party at bay-

A noble Lord: "Just".

Lord West of Spithead: But we really believe these things.

It is only right that I tell the House that we are not minded to take the risk of opting in at this stage. We therefore could not support the Motion were it pressed to a vote.

Lord Roper: I thank all noble Lords for their useful contributions to the debate. I believe that the report prepared by the sub-committee under the chairmanship of the noble Lord, Lord Jopling, has provided a good basis for what has been a useful debate, and I thank the Minister for his reply, particularly on procedural matters. I suspect that the committee and the sub-committee would be rather less happy about some of the points he made on substantial matters, but nevertheless we are grateful that he has said that he will be taking our points into account in the Government's further consideration of these issues.

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On this occasion I do not think it appropriate to test the opinion of the House, in view of the fact that the Procedure Committee has not yet completed its consideration of the House's procedure on these matters. I therefore beg leave to withdraw the Motion.

Some Lords objected to the request for leave to withdraw the Motion, so it was not granted.

Division on Lord Roper's Motion.

9.34 pm

Contents 41; Not-Contents 79.

Motion disagreed.

Division No. 1


Addington, L. [Teller]
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Carlile of Berriew, L.
Clement-Jones, L.
Dholakia, L.
Dykes, L.
Falkner of Margravine, B.
Garden of Frognal, B.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Howe of Idlicote, B.
Jones of Cheltenham, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Maddock, B.
Miller of Chilthorne Domer, B.
Newby, L.
Nicholson of Winterbourne, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
Scott of Needham Market, B.
Sharman, L.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tonge, B.
Tugendhat, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.

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Adams of Craigielea, B.
Adonis, L.
Archer of Sandwell, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bew, L.
Bilimoria, L.
Bilston, L.
Blackstone, B.
Bradley, L.
Brett, L.
Brookeborough, V.
Brookman, L.
Campbell-Savours, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Coussins, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Abersoch, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dubs, L.
Eatwell, L.
Elystan-Morgan, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Jay of Paddington, B.
Kinnock, L.
Lea of Crondall, L.
Lipsey, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Mandelson, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Moonie, L.
O'Neill of Clackmannan, L.
Pannick, L.
Patel of Bradford, L.
Pitkeathley, B.
Quin, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Robertson of Port Ellen, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Simon, V.
Smith of Leigh, L.
Snape, L.
Taylor of Bolton, B.
Thornton, B.
Tunnicliffe, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitty, L.
Young of Norwood Green, L.

House adjourned at 9.45 pm.

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