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9 Feb 2010 : Column GC147

Grand Committee

Tuesday, 9 February 2010.

Arrangement of Business


3.30 pm

The Deputy Chairman of Committees (Baroness Fookes): My Lords, before the Minister moves that the first statutory instrument be considered, I remind noble Lords that, in the case of each statutory instrument, the Motion before the Committee will be that it do consider the statutory instrument in question. I should perhaps make it clear that the Motions to approve the statutory instruments will be moved in the Chamber in the usual way. Should there be a Division in the House, the Committee will, as usual, adjourn for 10 minutes.

Asylum (Designated States) Order 2010

Asylum (Designated States) Order 2010
4th Report Joint Committee Statutory Instruments

Considered in Grand Committee

3.31 pm

Moved By Lord Brett

Lord Brett: My Lords, this is the sixth order that we have brought forward adding countries to the list of those to which the non-suspensive appeal provisions in Section 94 of the Nationality, Immigration and Asylum Act 2002 apply. This section allows the Secretary of State to add a country to the list if he is satisfied that there is in general no serious risk of persecution of persons entitled to reside there and that removal to that country of persons entitled to reside there will not result in a general breach of the UK's obligations under the European Convention on Human Rights.

The section also provides that an unsuccessful asylum or human rights claim made by a person entitled to reside in a designated state must be certified as clearly unfounded, unless the Secretary of State is satisfied that the claim is not clearly unfounded. The effect of such a certification is that a person must leave the United Kingdom before appealing the decision to refuse their claim, while still having an out-of-country right of appeal.

I should add that the test to determine whether a claim is clearly unfounded, and therefore certifiable under the provisions of the 2002 Act, can be applied to any asylum claim-those made by residents of designated states and those made by residents of other countries if the claim is considered to be clearly unfounded.

Since their introduction, the powers to add countries to the list have been used on a progressive basis to ensure that the provisions work well and are successful in stopping people making unfounded applications for asylum and unnecessarily prolonging the appeals process. The evidence to date on the 24 countries already on the list demonstrates that this is indeed the case and that the powers have made a significant impact in

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reducing the number of asylum applicants from those countries. Asylum intake from the 24 designated countries in the first year of designation has shown a consistent drop of 49 per cent on average.

On the decision-making process for considering an asylum or human rights claims from a resident of a designated country, each claim is given full and proper consideration on its individual merits by a fully trained caseworker. Applicants are entitled to legal aid and advice as part of the process, as well as the right of appeal against any refusal decision, albeit from outside the country. Fail-safes in addition to those already in place for asylum claims from those not entitled to reside in designated countries are built into the process. These include senior caseworker approval for each and every decision, thus ensuring the integrity of the decision-making process, and judicial review of decisions certified as clearly unfounded, where an applicant believes that their case was wrongly certified.

As a result of this process, we have been able to remove from the United Kingdom individuals whose asylum claims were established to be unfounded and who have diverted resources away from processing claims of those in genuine need of international protection. In view of the successful operation of the provisions thus far, we have decided that the time is right for us to add a further two countries to the list. The draft order adds South Korea and Kosovo to the list. The addition of the latter is a technical amendment, as Kosovo was designated as a province of Serbia in 2003. Kosovo became independent of Serbia on 17 February 2008 and, therefore, is now added separately in its own right. The number of asylum claims from South Koreans is in real terms relatively low, but is none the less disproportionately high given what we know about the situation in South Korea.

The assessment as to whether a particular country meets the test for designation is based not simply on the number of applications received from people who are entitled to reside in that country or the percentage of those applications that are unsuccessful. We instead consider the general conditions for the population in the country itself, not the profile of claimants who have made applications in the UK. Broadly speaking, we look to see what evidence there is of persecution or human rights breaches within a country and how widespread such treatment is.

In considering the two countries listed in the draft order, we took into account our published country of origin information material, which utilises a wide range of recognised and publicly disclosable governmental and non-governmental sources. I remind the Committee that we gave an undertaking to consult the Advisory Panel on Country Information on the country information that is used as a basis for the decision to designate a country. The APCI was an independent body created under the 2002 Act to advise the Secretary of State on the accuracy and objectivity of country information produced by the Home Office in the context of asylum applications. The APCI has now been replaced by the Independent Advisory Group on Country Information under the auspices of the independent chief inspector of the UK Border Agency, so we consulted the IAGCI.

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The panel's role in the country designation process is solely to consider the country of origin information material; it has no power to comment on the decision whether or not to designate. The panel considered the country of origin information produced on the two countries proposed in the draft order and confirmed that it is satisfied with the country information for these two states. The extension of the list to include these countries is not to say that they are totally safe for everyone; what we are saying is that we are satisfied that South Korea and Kosovo meet the legal test.

The draft order represents a gradual increase and progressive use of the powers under the 2002 Act and builds on the programme to reform our asylum and immigration system. At the same time, we continue to ensure that we do not deny legitimate claims a right and proper hearing and that we provide a safe haven for those in genuine need of international protection. I therefore commend the order to the Committee.

Viscount Bridgeman: My Lords, we on these Benches support the order and I thank the Minister for his comprehensive explanation of the background. We note that the Republic of Korea-South Korea-and Kosovo are the subject of the order. I have three questions. In fact, I now have two, as the Minister has given an assurance that each asylum claim is assessed on a case-by-case basis. First, can the Minister say how many asylum applications the Government receive on average per year from these countries and what the most common cause is of asylum applications? Secondly, how regularly is the list reviewed and according to what criteria?

Lord Avebury: My Lords, I, too, thank the Minister for introducing the order and for explaining the effect of putting a country on the white list, which, as he said, already applies to 24 other countries. A person from those countries on the list whose application for asylum is unsuccessful no longer has the right of appeal.

The last time we had a designated states order was July 2007, when I asked, for the second time, whether the Government had considered the use of the power to designate states in respect of straight people only, given that so many countries tolerate hate speech and violence against homosexuals or even pass explicitly anti-gay legislation, such as the Bill in Uganda, which President Obama has described as "odious". I had no answer on either occasion, so I try for the third time to persuade the Minister to agree that subsection (5C)(h) would allow the Secretary of State to designate a state for persons of a given sexual orientation if he considered that appropriate and, further, that the persecution of gays in some states would fully justify this use of the power.

Before I turn to the two states covered by this order, let me deal with the statistics that the noble Viscount, Lord Bridgeman, requested. They are already available, as the Minister may remind us, on the Home Office website, although they are slightly difficult to find-I had to ask the assistance of the Library this morning in locating them.

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Although Kosovo became independent on 7 February 2008, as the Minister explained, it is not distinguished separately in the figures; presumably, it is included under Serbia and Montenegro. Is it the intention to separate out the Kosovo figures? Why was that not done immediately Kosovo became independent?

As regards Korea, the figures show a substantial inflow of asylum applicants, curiously enough peaking in the third quarter of all the past few years that I have looked at. For example, in quarter 3 of 2009 there were 3,630. I shall deal later with the reason why some of these people apply to the UK for asylum.

On Kosovo, the European Union Rule of Law Mission in Kosovo, EULEX, is the largest civilian mission ever launched under the common security and defence policy, with about 3,000 personnel. Its central aim is to assist and support the Kosovo authorities in the rule of law, specifically in the police, judiciary and customs areas. There is also a UN mission, UNMIK, with a budget of over $200 million, and the Secretary-General has a special representative, who told the Security Council last month that,

The SRSG reported "positive news" on the relocation by the EU and USAID of 140 Roma families on a heavily lead-contaminated site in northern Mitrovica to more suitable residential accommodation, but all the people on this site need immediate medical attention. They also need to be part of a social inclusion plan that addresses the problems of minority IDPs from a human rights perspective and deals effectively with the equally poisonous inter-ethnic environment that affects the Roma in Kosovo in particular.

A state that needs such huge inputs from international agencies but still has not solved many of its own human rights problems does not appear at first sight to be one in which the Secretary of State can be satisfied that there is no serious risk of persecution, particularly of minorities. The Parliamentary Assembly of the Council of Europe reported last October that the UNHCR was recommending against the return of existing Roma refugees and it urged member states not to return failed Roma asylum seekers to Kosovo until the UNHCR considered that it was safe to do so. Here, again, I appeal to the Minister and ask whether the Government have considered exercising the powers in subsection (5C)(h) of the parent Act to designate the state of Kosovo in relation to persons of a particular ethnic orientation so that Roma may be exempted from this order.

On Korea, we have one major concern. At some point in 2008-perhaps the Minister can give the exact date-the UKBA began refusing the asylum claims of North Korean nationals on the basis that they had or were entitled to South Korean nationality and that, irrespective of the risk in North Korea, they could safely be returned to South Korea. A major country guidance case on the legality of this approach is due to be heard by the tribunal in April or May 2010. I have given the Minister notice of the case and of the reference to it.

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3.45 pm

The arguments are that North Koreans do not automatically qualify for South Korean citizenship and that it is not lawful to compel them to take up a new nationality just to relieve the UK of its refugee convention obligations. By way of analogy, the Home Office does not expect all Jewish asylum seekers to apply for Israeli nationality under the law of return before it has substantively determined their claims. Therefore, it should not expect North Korean nationals automatically to apply for South Korean nationality. Alternatively, even if North Korean nationals are automatically also nationals of South Korea de jure, their nationality is not effective because the South Korean authorities put considerable practical barriers-such as those in relation to obtaining passports-in the way of accessing safety in South Korea.

I am oversimplifying an extremely complex set of legal arguments and we understand that the Home Office has instructed counsel from Blackstone's to present its case at the tribunal. That is a very unusual move at this stage in litigation, but cases have been won by Refugee and Migrant Justice before immigration judges in the last month or so, on precisely the same arguments, for clients who would have been caught by the certification provisions had the designated states order been in force at the time. It is therefore a matter of considerable concern that the UKBA is proposing to add South Korea to the white list at this time, before the current litigation on behalf of North Koreans has been settled.

I recognise that designation orders are not meant to be retrospective. No doubt the Minister will repeat the assurances that the noble Viscount asked for and which were given on this point in another place, but what happens if the test case is successful? The courts would then have decided that North Koreans are not returnable but the Government will say that Parliament has decided that they are because they are de jure South Korean nationals. We ask for an undertaking that, if we pass this order, it will not apply to asylum seekers asserting North Korean nationality.

Lord Brett: My Lords, I thank the noble Lords who have participated and, as usual, asked testing questions. I turn first to the questions asked by the noble Viscount. I can assist with those about the number of asylum seekers, but less so with those about reasons, because we do not record them. We do not have a central record. On numbers, taking the three years 2007, 2008 and 2009, we had 25 applications from South Korea in 2007, 10 in 2008 and five in 2009. From Kosovo, we had 50 applications in 2007, 70 in 2008 and 20 in 2009. The figures for 2008 and 2009 are provisional.

To digress to the question asked by the noble Lord, Lord Avebury, about why the applications come in the third quarter, that will, I am afraid, remain a mystery, at least to me. It is not a question that I have an answer to. I have already dealt with the question of assurance. The noble Lord, Lord Avebury, as ever, put to me a series of testing questions with great knowledge and research. I can probably do some justice to these, but not as much as he might wish. On the certification of heterosexual people only, I take on board the noble

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Lord's points. Gay people's situations will be considered as part of a country's general situation, but I take the noble Lord's point and I will respond to him in more detail on that.

On Kosovo, we are not saying that such countries are safer for everyone but in general we accept that they have a legal system that does not discriminate against groups of people in law. I can reassure the noble Lord that numbers for Kosovo are recorded separately from those for Serbia and Montenegro. Since 2003, Kosovo has been a fully designated state, separate from Serbia. Our judgment is that it is generally politically, ethnically and religiously stable and has a good human rights record. There are some areas of concern, which I think the noble Lord cited: societal discrimination against ethnic minorities and homosexuals; domestic violence against women; some concerns about human trafficking; and abuses that take place. These do not generally reach the Article 3 thresholds and avenues for redress are available. I will, as I have said, respond to the noble Lord in greater detail in writing.

With regard to North Korea, again, I shall write to the noble Lord on why asylum applications have been refused. Our in-country guidance is that asylum applications from North Korea should continue to be considered on their individual merits. If an application is refused and the individual is entitled to reside in South Korea, the claim is considered to be clearly unfounded. The case will be reconsidered for certification but it should be noted that that will be after the case has been looked at on its individual merits. However, as I said, I shall write to the noble Lord on that broader issue.

I shall also write to the noble Lord on the question that he raised in respect of the AIT. It is very important that we consider carefully the situation in North Korea. We cannot give the undertaking that the noble Lord requested but I give a commitment to investigate the matter and to write to him in the detail that his question deserves. I hope that with those assurances the order will commend itself to your Lordships.

Motion agreed.

Access to the Countryside (Coastal Margin) (England) Order 2010

Access to the Countryside (Coastal Margin) (England) Order 2010
6th Report Joint Committee Statutory Instruments

Considered in Grand Committee

3.50 pm

Moved By Lord Davies of Oldham

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Davies of Oldham): My Lords, the Government are of course committed to providing a route around the coast of England for people to enjoy. The draft order currently before the Committee is the next important step in ensuring that that becomes a reality within the next 10 years. It has been laid before Parliament under

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the powers in Section 44(3) of the Countryside and Rights of Way Act. Section 303(5) of the Marine and Coastal Access Act 2009 amends the CROW Act to include coastal margin in the definition of access land. It also inserts a provision that enables the Secretary of State to specify certain land as coastal margin.

The Marine and Coastal Access Act is a great achievement. It took almost a year to complete its passage through Parliament and came out all the stronger for the careful scrutiny that it received in this House and the other place. Today I offer my plaudits to the noble Lords I see before me who contributed to the deliberations in our extensive scrutiny of the Bill, which we all enjoyed and look back on with the greatest pleasure, given that the outcome was so constructive. I also pay tribute to the excellent pre-legislative scrutiny work completed by Members of this House in the Joint Committee chaired by the noble Lord, Lord Greenway.

Part 9 of the Act provides for improving access to the English coast. It does this through introducing new sections into two existing pieces of legislation: the long-distance path provisions of the National Parks and Access to the Countryside Act 1949; and Part 1 of the Countryside and Rights of Way Act 2000. New Section 3A of the CROW Act, inserted by Section 303 of the 2009 Act, enables amendments to be made by affirmative resolution order to the existing provisions in the CROW Act as they will apply to coastal land. The draft Access to the Countryside (Coastal Margin) (England) Order before us introduces necessary amendments to the CROW Act which are appropriate to the circumstances on the coast and which, alongside the 2009 Act, will help us to deliver our vision for clear, consistent and, as far as possible, continuous access along the English coast.

We consulted on the proposals for the order between September and December last year and received 197 responses from a range of organisations and individuals. We are grateful to all those who took the time to respond; a summary of those responses is available on the Defra website. We considered carefully all the comments received, which in general have supported our consultation proposals, but we have amended the proposals in some respects as a result of the views expressed. I believe that we have before us a way forward that will contribute to striking a fair balance between the interests of the public and the interests of landowners and occupiers.

Article 3 of the order sets out descriptions of land to which the right of access under Section 2(1) of the CROW Act will apply. The descriptions include the line of the English coastal route, land within 2 metres either side of the line of the route, land to the seaward of the route and land to the landward of the route where it is foreshore, cliff, bank, barrier, dune, beach or flat.

Part 1 of the schedule to the order amends the categories of excepted land at Schedule 1 to the CROW Act as they apply to the coastal margin, removing some existing categories, amending some categories to allow the coastal route to go though and adding new categories appropriate to the circumstances of the

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coast. Part 2 of the schedule amends the general restrictions at Schedule 2 to the CROW Act, in particular the requirements for control of dogs; for example, it introduces a requirement that a person on the coastal margin accompanied by a dog must keep the dog under effective control and it relaxes restrictions on angling-related activity, for obvious reasons as far as the coast is concerned. Part 3 of the schedule amends the process for making exclusions or restrictions of access and adds a new power to restrict or exclude access to areas of salt marsh or flats where they are unsuitable for the public.

The changes are proportionate and appropriate. The flexibility in the Act and the extensive consultation that Natural England will undertake prior to recommending any route will ensure that all interests are taken into account and that any necessary exclusions and restrictions are in place from the outset. I commend the order to the Committee and I beg to move.

Lord Taylor of Holbeach: My Lords, I thank the Minister for introducing the order, which we welcome. Those of us who saw through the Marine and Coastal Access Bill, of which he kindly reminded us, will have fond memories of those days spent in Committee but a year ago; it seems a distant memory. However, it is not under that Act that the order is being made; the Minister rightly said that the purpose of the order is to amend the CROW Act.

I must declare an interest: I am a farmer and landowner. Although I do not farm on the coast, I am a member of the National Farmers' Union, which I know made submissions to the consultation process.

The schedule is where the key matters lie. If I pose questions to the Minister, it is just to get clarification of quite complex legislation that has many impacts, not only on the coastal route strip but also on the margin, which is also part and parcel of the coast. The order in some cases changes arrangements for existing CROW Act land and an owner's ability to control visitors and activities on it. It is important to try to set those in context.

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