Minimum Standards in Asylum Procedures: EUC Report
Lord Hope of Craighead (Judge)
Lord Hope of Craighead (Judge)
My Lords, earlier today, your Lordships had the pleasure of listening to an excellent debate on the Motion of the noble Baroness, Lady Harris of Richmond, to take note of a report by the European Union Committee on a Community immigration policy. It is now my privilege, at this rather late hour, to initiate a further debate on a report from the European Union Committee. The topic this time is a proposal for a Council directive on minimum standards in asylum procedures.
This proposal may be seen as perhaps one further step along the road towards a Community asylum policy. Once again, we are concerned with one of the most basic of all the problems faced by the EU; that is, how to deal with people from other countries who, often for very good reasons, wish to enter and live in the Community.
But your Lordships will appreciate that the context for this debate has shifted from that of the previous one--from the generality to the particular. Its subject matter can be identified, quite precisely, by two things. First, this time we are concerned with asylum seekers or refugees and with the obligations which all member states owe to those who seek asylum under the Geneva Convention of 1951 relating to the status of refugees.
Secondly, we are concerned with a proposal which is limited in its scope to minimum standards in matters of procedure. The procedures with which we are concerned are those for granting or withdrawing refugee status from those who seek asylum in a member state of the EU. As your Lordships know, obligations and procedures are matters that lawyers like to think about. Therefore, it is no accident that this report is the product of an inquiry which was conducted on the Select Committee's behalf by Sub-Committee E, whose remit is the law and institutions of the EU.
Nevertheless, although this is a discussion about obligations and procedures, discussions about procedures relating to the status of refugees and asylum seekers cannot be said to lack human interest. The principle on which the convention is based--its very cornerstone, indeed--is that no refugees should be returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.
It is no exaggeration to say that the fate of those who are unfortunate enough to find themselves in that position--people who are forced by circumstances legitimately to seek protection in the Community because of the risks that they face in their own country--may depend in the end on rules of procedure. Their applications for asylum must be examined swiftly to prevent abuse and remove uncertainty, and those who are in need of protection need to be identified correctly and speedily. Therefore, effective access to procedures throughout the decision-making process is an essential safeguard for the individual.
But the member states, too, have an obvious interest in the efficiency, speed and accuracy of those procedures. After all, the purpose of the convention is to provide protection to those who are genuinely in need of it. Abuse of the system must, of course, be weeded out. It is enormously wasteful in time, money and resources. It gives the system as a whole a bad name.
By way of introduction to this brief debate, I should like to give a short description of the background to the proposal for Community legislation on minimum standards of procedure, and then, for the Minister's benefit, to draw attention to the more important points which the committee's report has identified.
The origins of the proposal can be traced back to the meeting of the European Council which took place in October 1999 at Tampere. At that meeting, the Council agreed to work towards a common European asylum system. The process which it envisaged involved two stages. The target for the longer term was to be a uniform asylum procedure and a unified status for all those granted asylum in any member state of the EU. Five distinct topics were included for attention in the shorter term. The aim was to establish minimum standards on asylum matters in all member states with a view to their harmonisation in the longer term.
As I said, we are concerned here with the proposal for minimum standards of procedure. As it happens, shortly before Parliament was dissolved in May, the Commission published another draft directive on minimum standards for the reception of asylum seekers. The aim of that directive is to harmonise the legal position of and assistance given to asylum seekers while member states are considering their applications. A high priority is to be attached to it by the Belgian presidency. A brief investigation into this matter is currently being conducted by Sub-Committee E.
That background of activity brings me to the first point in our report. The first of the five topics to emerge for consideration was this one dealing with procedure. Not surprisingly, some of our witnesses expressed the view that it would have been better if some of the more fundamental points, such as the approximation of the rules relating to the recognition and content of refugee status, had been addressed first. There was perhaps a hint here that the committee would have been better to wait for the other proposals before becoming involved in this one concerning procedure.
On the whole, we were not much impressed by that criticism. Although there is plainly something to be said for the view that matters of substance should be sorted out before agreement is reached on procedure, the proposals about procedure raise distinct issues which can properly be subjected to scrutiny at this stage. As events have turned out, it appears that draft proposals on the other items will not be far behind. That on the reception conditions is already with us, as I have said, and is to be accorded a high priority. So perhaps the most important point to bear in mind is the fact that we are dealing in this debate with only part of a more substantial package, the overall aim of which is to establish those common minimal standards before embarking on the aim for the longer term of establishing a common asylum procedure and a uniform status for all those who are granted asylum anywhere in the EU.
That brings me to another general conceptual point, which was raised by some of our witnesses. It relates to the concept of minimum standards. The risk to which they drew our attention was that of setting the minimum standards by reference to the lowest common denominator. We agree that care must be taken not to fall into that trap. The aim, as we see it, should be to raise standards wherever possible. That applies to the procedural standards to which we adhere in this country just as much as it does to those in other member states. We believe that the United Kingdom should be setting the highest standards, not seeking to shelter among those whose standards are low.
I turn to some points of detail. The directive contains 46 articles and two annexes and it covers the entire field of asylum procedure. Inevitably, our report is full of much more detail than can conveniently be covered in this debate. I shall concentrate on just a few points that we have identified. If the Minister wishes to comment on them, the committee would welcome that.
The first point involves the question of rights to translation and interpretation and access to legal advice. Articles 7, 8 and 9 of the directive contain a comprehensive package of guarantees that are designed to ensure that, with respect to all the procedures that are provided for in the directive, all applicants for asylum understand fully their rights and obligations, are fully informed of the decision and of the possibility for it to be reviewed, are given the opportunity of a personal interview and have access to legal advice at all stages of the procedure. Those include quite extensive rights to translation and interpretation.
In the ideal world, of course, all asylum seekers would have access to an interpreter who could speak to them at every opportunity in their own language and to the provision of translations into their own language of all the relevant literature. At first sight, the article seems to subscribe to that principle because it states that they must be informed of the procedure to be followed and of their rights and obligations during the procedure in a language that they understand. We recognise that, taken literally, that would run the risk of placing an impossible burden on member states, in view of the great number of languages and of dialects within languages that might have to be covered by the rule. So we accept that there is room for some modification in the extent to which translation facilities must be made available, provided that the essential point is recognised that all applicants, from whatever country they may come, must be made fully aware of their rights and the way in which they may exercise them.
Nevertheless, as we put it in our report, the determining authority has to make sure that the individual concerned can exercise his or her rights under the convention. That is particularly important at the outset and again at the stage when a decision has been taken on the application, so that applicants are fully aware of its import and implications. That is an area of domestic asylum practice in which increased investment may well be needed for the provision and training of more interpreters and the translation into more languages of the relevant documents.
Related to that problem is that of access to advice. It was suggested to us that a large number of asylum applications are currently being refused in this country because the statement of evidence form, which must be filled in in English, has not been completed correctly or in time. Where that occurs it leads to rejection of the application on non-compliance grounds and to an appeal, which may in its turn be refused on the same grounds. If that is true, it is a matter for very real concern because it undermines the basic principle of the convention that no refugee should be returned to a country in which his or her life or freedom would be at risk. That is a case of bad decisions resulting from defective procedure. There are also strong objections to this situation on practical grounds. The appeal process is being clogged by cases that should not be there. Where judicial review is resorted to, it brings with it further delay and expense. The result of a successful application for judicial review is a decision that takes far longer and costs far more. Every effort should therefore be directed towards achieving fair and sustainable decisions on the merits at first instance, which are based on an accurate presentation of the facts. The prompt giving of legal assistance in the handling of applications with that in view is likely to contribute to the efficiency of the whole process.
My next point relates to the question of the application of "safe country" concepts. As we pointed out in our report, substantial criticisms were made by our witnesses about the use and definition of the concepts that are embraced by the phrases, "safe third country" and "safe country of origin". Article 18, in brief, provides that a member state can dismiss an application for asylum as inadmissible if a third country with which, for example, an applicant has a connection or close links can be considered as a safe third country for him. Article 27 permits the use of accelerated procedures to process applications that are suspected of being manifestly unfounded. Included in that category are those in which the applicant is from what is described as a safe country of origin.
That area of asylum practice requires very careful scrutiny. The problem lies in the principles that the directive lays down for the designation of countries as safe and in the temptation for member states to adopt an automatic, list-based approach to those applications. It may well be said that the use of safe country concepts is likely to promote efficiency and to contribute to speedy decision making. However, there is a risk that resort to lists will replace the consideration of individual cases on their own facts and that the lists themselves will prove to be erroneous and unreliable. Our conclusions are that it is essential that those concepts should not be allowed to create presumptions that are irrebuttable, that there should be strong independent supervision of the designation of countries as safe countries and of their inclusion in any lists and that their use in practice should be monitored. The annexes in which the principles for designation are set out appear to be incomplete and in other respects unsatisfactory. That whole area is one to which we urge the Government to give careful consideration during the discussion of the draft directive.
There is one other point of detail with which I want to deal before concluding. It relates to the special case of unaccompanied minors, to whom a legal guardian or adviser is to be appointed to assist and represent them. There are, however, other classes of applicants for whom special provision on the same lines might be made. We heard evidence on that matter from the Medical Foundation for the Care of Victims of Torture. It drew our attention to the special needs of the survivors of torture and the victims of violence of other kinds, such as women who have been abused sexually and those who are disturbed psychologically. It is, we think, an open question as to whether a separate article is needed in their case, although those who are disturbed psychologically may be as much in need of a guardian or adviser as children are. However, we would welcome an assurance from the Government that the position of those other special cases will be recognised in some way. What is needed is the provision of safeguards to reduce the risk of prejudice against those who cannot adequately represent their own interests because they have been so acutely traumatised by their experiences that they are incapable of understanding what is going on or of describing the situation in which they find themselves.
There is no time for me to go into further details but my opening remarks would not be complete without my paying tribute to all those who assisted us in our inquiry by providing us with written and oral evidence. The commission consulted several of the relevant organisations before drafting its proposal. We have continued the same process. In matters of procedure there is, after all, no substitute for practical experience. One of the strengths of our committee procedure is the extent to which it enables us to draw upon the knowledge and experience of those who are, so to speak, in the front line. That is a most important aspect of the process of parliamentary scrutiny. It engages with civil society and it contributes greatly to the respect in which the work of Select Committees is held throughout the EU.
I pay tribute also to all the members of my sub-committee and to our legal adviser, Dr Christopher Kerse. Their contribution to the inquiry and to the text of this report, from start to finish, has been immense. It has been my privilege to present the report to noble Lords on their behalf. However, the intellectual effort that has gone into it has been almost entirely theirs, not mine. I owe them all a very real debt of gratitude.
Lord Judd (Labour)
My Lords, I am sure that we all want to thank the noble and learned Lord, Lord Hope of Craighead, and his fellow committee members for having produced a very impressive report. As he said, while our debate earlier this evening was very general in nature, this is extremely precise.
But even if it is a report which dwells on precision, it again illustrates--and I do not apologise for making the point which I made in an earlier debate--the quality of work which is undertaken by our Select Committees in this House and their importance to the whole democratic and parliamentary system in the United Kingdom, something which we should not underrate in the deliberations which lie ahead in the coming year.
Much that the noble and learned Lord said towards the end of his remarks, to me as a layman, seemed particularly important. In fact, as a layman, I feel rather inhibited in speaking in this debate because there was so much legal expertise at the disposal of the committee.
But for a great deal of my life, I have worked in humanitarian agencies. I am quite certain that what the noble and learned Lord said about the need for special measures for those who have encountered particularly traumatic experiences, be they torture or of some other nature, is a point which the Minister should take seriously. I know that he will take it seriously and it will be good to hear his comments. Indeed, the needs of children also should be emphasised.
I underline also my profound unease with the whole concept of "safe country". It seems to me that the administrative rationale for having such a notion in the heart of the administration policy here may be overwhelming. But asylum is about an individual in an individual situation. We must never lose sight of that. Therefore, it seems to me that we must be very careful that, with this notion of "safe country", we are not undermining the responsibility to look at each case individually on its own merits. That is what we should be doing with all the powers at our disposal.
That brings me to the main point that I want to make. I was looking--and it is very helpfully reproduced in the report--at the proposal for the directive. Paragraph (1) sums it up well. It states that,
"A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community".
That seems to be a civilised priority which makes the European Union a body well worth belonging to.
But the point that I want to make is that, however precise the formal regulations which we are considering this evening are or should be, I do not believe that one can separate them from the experiences of those who are going through those procedures. It is unhealthy to look at those two in isolation because I do not believe that the one can be separated from the other.
I want to pay a very real tribute to the Minister for whom I have an extremely high regard. I have had the good fortune of knowing him for many years and he is one of those who I know brings a freshness and candour and desire to be free of cant which is very important in any Minister. Because I have a high regard for him, I hope that he will take a few moments in the days ahead to look back at some of the things that he has said from the Dispatch Box since taking on his responsibilities in this House.
Because I admire the Minister, I am going to say absolutely directly that I have not been reassured by what he has said about the voucher scheme. He responded to anxieties by saying, "Well, we are not ready to publish the survey yet and that is why it has not been published". But in the middle of this issue, there are asylum seekers who have been through hell. They are here because of their persecution. This is not a light matter. We should do everything within our power to ensure that such people are receiving the protection and enjoying the freedom which is spelt out in that paragraph to which I have just referred.
Many of us close to the issue know that the voucher scheme is a humiliation and a ground for insecurity. It is a system which involves stigma. It identifies those people as something separate. In areas of pressure and instability in our own society, it attracts attention and makes them feel insecure in the midst of all that is going on around them. It really is not good enough to say that the survey is not ready yet and, therefore, it has not been published. The fact is that that is urgent and should receive top priority, if the spirit of what is spelt out in this proposal from the Commission is to be observed.
Therefore, I make no apology for raising this issue in the context of this debate again. Because I have respect for the Minister, I hope that he will be able to say something reassuring this evening.
There are two other points that I should like to mention briefly. The first is the issue that has been raised by the Refugee Children's Consortium concerning the detention of children in the processes for which we are responsible. I share the view of that consortium that there is no place for the detention of children, however we administer our procedures in this context. I do not believe that such action can be reconciled with the UN Convention on the Rights of the Child, nor with the Government's own White Paper--Fairer, Faster, Firmer. Again, I want to hear the Minister's reassurances on the Government's future policy in that respect.
My concluding observation is to repeat something that I said in the earlier debate because I believe that it applies to this one. Asylum is not a British problem, challenge or issue; it is an international problem, challenge or issue, hence the proposals by the European Union. Nor is it just a European Union matter; it goes wider. In my work in the Council of Europe as chair of the Refugee Committee in the parliamentary assembly, I am constantly reminded that every time the European Union believes it is buttoning up its asylum policies neatly and effectively to meet its own needs and circumstances, inevitably there are implications for European countries that are not members of the union.
It is simply irresponsible to develop a policy in the context of the European Union alone and not to share the responsibility with the wider European community. We should reach out towards policies that will be effective in a wider European context and not, because of our determination to limit the number of cases that we deal with ourselves, place unfair burdens on others who often have fewer resources than those at our disposal.
I hope that the Minister will be able to reassure us on this matter and to say that there is a determination on the part of the Government to work closely, not only with the European Union, but also with the wider European community outside the Union and indeed with the international community.
The Bishop of Southwark (Bishop)
My Lords, I am grateful to the noble and learned Lord, Lord Hope of Craighead, and his colleagues for their report on the important matter of cross-European minimum standards in asylum procedures. There are few occasions on which the well-being of humanity is not improved by groups of people being willing to work together. In principle, these Benches welcome the report's testimony to European co-operation over the issue of asylum procedures, which is of such major concern to us all. We also welcome the report's insistence that that co-operation should be within the well established and common international obligations within which pattern Europe must work, if it is to work at all. We welcome the Government's willingness to consider such European co-operation.
However, a common policy of the whole EU cannot come into realistic and practical existence without the ability of all member states to adopt and to implement such a policy. Many of us have laboured long to improve the asylum policy and procedures of the present Government, and much time has been given to the matter in your Lordships' House sometimes--I have to say to the new Minister--with disappointing results.
I, for one, welcome any sign of the Government's willingness to make asylum and immigration procedures better. I know that I am not alone among your Lordships in feeling that all is not yet well in the state of Britain in this regard. Let me give your Lordships an example of the consequences of the difficulties of the present system. Staying in one of our Church of England vicarages in Everton at present are 10 Kurdish-speaking asylum seekers. Before coming to the vicarage five of them were on hunger strike. Why? Because the National Asylum Support Service (NASS) had housed them in two tower blocks owned by a private landlord.
Six hundred to 700 young men, mostly from Iran, Iraq and Afghanistan, are crowded into those blocks. The clergy in Everton tell me that there are allegations of the shutting down of lifts, the withholding of post, uncontrolled access to all the flats by the staff, threats of deportations or influence over asylum applications if complaints are made, and even threats of physical attack. I do not know the truth of any of that, but the local clergy have been sufficiently concerned to give house room to those on hunger strike. The clergy are also relieved to know that an investigation is taking place, and a report should be with the noble Lord, Lord Rooker, within a short time. The clergy are rather less impressed with NASS's immediate response which was to tell the 10 people seeking refuge in the vicarage that they must now go to Sunderland or lose all the privileges of the support system.
I would not want or expect the Minister to comment on that particular case, but it happens to be just one case that has come across my desk as chairman of the Church of England's Board of Social Responsibility and it is simply an indication of what can and sometimes does go wrong with the present system. There are too many stories of the corruption of the voucher system, of isolation and despair, of the waste of resources as specialised support agencies such as interpreters try to keep track of asylum seekers scattered around the country in a system that could almost appear calculated to encourage people to disappear. The Churches hear these stories all the time, because those whom the system fails tend to show up in our vicarages, our drop-in centres, our night shelters, and our prison chaplaincies.
With such an inadequate UK system, we must, of course, encourage Her Majesty's Government to work for common European standards. The results can only be an improvement. But we must also recognise that such policies will be of no value if they lead to a lowest denominator approach to our policies, especially those on asylum issues. As the report notes, any notion that minimum standards are to be taken in this sense should be firmly rejected. We would therefore like to see a situation in which minimum standards are, at the very least, the highest standards currently operating in the countries adopting the directive.
As member states try to swiftly work out a common policy, there may be a temptation to accept minimum standards in the sense of lower common denominator standards. Certainly an integrated European policy which results in quicker decision making will indeed benefit asylum seekers and those administering asylum policy, but only if the decisions are fair and accurate. There is little to be gained from quicker decisions that result in a greater number of appeals and more injustice. Nor should we underestimate the difficulty of ensuring that that does not happen.
There are several reasons why haste will be sought: first, the political pressure on most EU governments in countries, including ours, in which asylum applications have been on the increase; secondly, the care needed to ensure that any framework is drafted with proper regard to international law--a process likely to be lengthier than not; thirdly, the concern, flagged up by the committee, that the proposed directive might give credence to concepts whose legitimacy in international law might be questioned. Such concepts include "manifestly unfounded claims", "safe country of origin", or even "safe third country".
It therefore seems that, although there are reasons to welcome this directive, it should be welcomed with caution. We cannot welcome it as an instant answer to a pressing problem, but we should and must welcome it as the first step towards initiating further debate which should lead to higher uniform standards for asylum seekers. I trust that your Lordships' House will be actively involved in the future consideration of the directive and its implications, to the benefit of both asylum seekers and the countries in which they wish to settle.
Lord Goodhart (Liberal Democrat)
My Lords, I rise to speak briefly in the gap. I do so because my noble friend Lord Lester of Herne Hill, who had intended to speak in this debate, is unable to do so because of other commitments. I also wish to speak because no other speaker in today's debate, or no one else present in the chamber this evening, was a member of Sub-Committee E.
I should like to pay particular tribute to the noble and learned Lord, Lord Hope of Craighead, because this is the last report to emanate from Sub-Committee E before he retired from the chair, as he did at the general election. As the chair of Sub-Committee E, he was notably calm, effective, hard working and clear minded. The only respect in which I disagree with him is that the intellectual effort was ours rather than his. That is certainly not true.
I should like to refer briefly to two of the points that he mentioned. The first is the importance of ensuring that the directive does not simply adopt the standards of the lowest common denominator. One part of the directive that would raise standards in the United Kingdom relates to improved provision for translation and interpretation. I was astonished to discover that applicants have to complete the statement of evidence form in English without being entitled to any form of help from someone who can speak to them in their own language. That is a matter of particular concern, because a failure to return the form within a short time results in the automatic rejection of an asylum seeker's initial application.
By contrast, one aspect in which the directive is inadequate is in its treatment of the concept of the safe country of origin and the safe third country. Having previously been open minded, I was persuaded by the evidence that those concepts are unsatisfactory and cannot be relied on to provide, as the directive seeks to, automatic or nearly automatic answers, dispensing with the need to investigate the actual facts of the case. I therefore believe that there is much work to be done on the directive before it can be adopted as a wholly satisfactory common standard of procedure for the member states of the European Union.
Lord Avebury (Liberal Democrat)
My Lords, the noble Lord, Lord Judd, said that the report was evidence of the quality of work undertaken by your Lordships' Select Committees and I heartily agree. I also agree with what my noble friend said about the chairmanship of the noble and learned Lord, Lord Hope, in steering the excellent report to completion and bringing it before your Lordships' House today.
There is a political commitment to develop an EU asylum and immigration policy and we know that that is shared by the Government. It is obvious that if standards and procedures vary widely between one country and another within the 15 member states, there will be distortions in the flow of migrants to and within the Union. Indeed, there is already, for a variety of reasons; for example, relative accessibility of different countries and the linguistic affinity of asylum applicants with particular countries.
The objective set by the European Council at Tampere in 1999 was to agree on the minimum standards to be adopted in the short term, which we have before us now, leading to a common asylum procedure and a status for asylum throughout the EU at some unspecified future date. Today we are considering the draft directive on minimum standards in asylum procedures and we will confine our attention to that matter. However, the debate has ranged more widely into issues related to asylum.
As the noble and learned Lord, Lord Hope, explained, some witnesses believed that the procedures should not have been considered before more fundamental issues such as the rules on recognition and content of refugee status had been examined. The committee stated that there is a strong argument against limiting the directive strictly to the determination of the convention claims. Member states have obligations under the ECHR, whether the directive mentions it or not. As human rights issues arise in the course of every asylum application, the directive should spell out the human rights issues of a wider nature which are relevant.
However, the committee recognised that problems could arise if the directive were to be extended to other kinds of protection which might be available under, say, the convention against torture because the treaty basis for such an extension would have to be verified. The committee stated that the member states' existing law and practice on complementary protection varies widely.
I would have thought that that was a good reason for saying that the matter should have been considered under the directive. Surely it is as necessary to eliminate arbitrary differences in the treatment of applicants for complementary protection as it is to eliminate the differences in respect of applicants under the convention itself. Surely what the European Union needs is a uniform system of protection, not a piecemeal uniformity for each of the different forms of protection.
The European Commission indicated that draft legislation on all the elements of Article 63.1 will be presented this summer, so perhaps the Minister will confirm that we shall have an opportunity of considering these issues before the directive becomes law. The noble and learned Lord, Lord Hope, told us that one of the other elements is already in place in that a further draft directive has been published.
The committee rightly emphasised that the minimum standards of the directive should not lead to any lowering of standards in the member states which have already exceeded the requirement, nor should it mean that the states which are applying for accession should adopt the lowest allowable standards as part of their ticket for gaining entry. Can the Minister tell us whether the applicant states will, when the time comes, be examined on compliance with the directive under the EU's Copenhagen principles?
The committee believes that the directive should ensure that the highest common factor of standards should be adopted and we should ensure that all states adopt best practice. Do the Government agree with that proposal; if so, how do they see it being implemented? Who is to identify best practice among member states? How would it be disseminated, and how would compliance be assured?
The committee notes the Government's investment of resources in decision-making but says that the quality of the initial decision should be as high as possible. As a result of additional case workers and the introduction of the new computer system--perhaps the Minister can tell us whether that is now fully operational--there has been a big rise in first decisions and a corresponding reduction in the backlog of applications by asylum seekers. But, as has been said by several noble Lords this evening, some of those decisions were purely technical and based on the failure of applicants to complete a 28-page form in English within 10 working days. As the committee observes, one should not have to turn to the appeal procedure as a substitute for good quality decisions in the first instance. Perhaps the Minister can tell the House the rate of non-compliance refusals for any recent period for which figures are available. We have been told that it is a very large number. However, we have never been able to discover from the IND exactly how many refusals are given on those grounds.
As your Lordships will note, the committee warns that the rejection of applications on non-compliance grounds puts us at risk of violating our international obligations. The committee says that,
"there is no substitute for a procedure that produces a speedy, fair and sustainable decision on the merits".
The Government agree with that in principle but consider that, as an adjudicator then has to deal with a matter of substance that should have been considered on first application, we are in the clear as far as concerns our international obligations.
At the same time, as several noble Lords have observed, the Government are unhappy with Article 7 of the directive which calls for better translation and interpretation services which might, therefore, help to reduce the number of non-compliance refusals. If people had proper interpretation and translation services they would be able to fill in the form and there would be fewer refusals on the grounds that they had not replied to it. I do not know whether the Kurds referred to by the right reverend Prelate would come into that category. However, when one looks at this directive one must consider whether it will be of benefit to the applicants who have difficulty with the procedures that they face at present. Would they have had to seek refuge in the properties of the Church if proper facilities had been made available to them in the first instance and they had been able to go through the procedures without any difficulty?
The committee suggests that the minimum standard has been set too low because of the discretion given to member states to derogate from important safeguards. It suggests that the rights of asylum seekers under international law are not adequately protected and that entrenchment of dubious concepts such as "manifestly unfounded claim", "safe country of origin" and "safe third country" could undermine the application of the convention or the ECHR.
Most of the witnesses heard by the committee attacked the idea of "safe country of origin", and the noble and learned Lord, Lord Hope, made particular reference to that. The Home Office is developing its own country assessments against which particular claims can be tested, and an applicant from a country where very few allegations of human rights violations are made will not occupy very much time and effort in the evaluation of his individual claim. Justice, the UNHCR, ILPA, Amnesty International and Professor Guy Goodwin-Gill all criticise the concept in principle.
The committee concluded that the risks of wrongly returning an applicant to an unsafe country, and the potentially devastating consequences to him if he is returned, are too great to justify the retention of the idea of "safe country of origin", but if it remains in the directive the Commission should monitor its application and present an annual report to the European Parliament. That is second best, if we can get it.
The committee says that there should also be a review of the criteria used to define safe countries of origin and safe third countries in the two annexes to the directive. My noble friend Lord Lester in questioning one of the witnesses before the committee referred to,
"a very strange list of the human rights that are relevant",
in deciding what is a safe country. He suggested that if there is to be a list of criteria, at least it should include all the well-known and relevant international standards. I am very sorry that the Government have resisted the committee's recommendation on that matter against all the professional advice which we have in the public domain, although we do not know what advice the Government have been given which leads them to a contrary opinion. Perhaps the Minister could usefully say something on that matter today.
In our own system that means that the applicant has no right of appeal from an adjudicator's decision once a claim has been treated as exceptional. The quality of the first decision of course is the same for everyone, as Mrs Roche made clear before the committee. But when a case is certified the adjudicator's decision is final, except for the remote possibility of a successful judicial review. The judges of the IAT were very critical of the accelerated procedures. Mr Ockelton's describes the process. He said:
"The Secretary of State picks up certain types of cases and certifies that they are cases which for one reason or another are cases without merit. There is an appeal to an Adjudicator and if he agrees with the conditions of certification there is no appeal to the Tribunal and therefore, the alternative procedure of judicially reviewing the certificate, which is much more expensive and longer, takes place with, in a substantial minority of cases, the result that the certificate is set aside, and the matter . . . comes before the Tribunal. The effect of accelerating the procedure is to add several months and many hundreds of pounds to the cost of dealing with it".
That cannot make any sense. I hope that the Government will think again on this particular recommendation.
Finally, I raise a matter which has not been mentioned. The committee is critical of the directive's lack of clarity about the reasons for detention and the potential width of the grounds on which an applicant can lawfully be detained. The committee believes that Article 11 should make it clear that detention is only permissible when it is in accordance with Article 5 ECHR and UNHCR standards. It wants the directive to include a general statement on the presumption of liberty. I am sorry to note that the Government reject any references to the ECHR and UNHCR standards and they do not say anything at all about the presumption of liberty.
I asked in the recent debate on prisons when the Government were going to introduce Part III of the Immigration and Asylum Act 1999, which provides for routine bail hearings of people detained under the Immigration Act. I should be grateful if the Minister could reply to that question this evening.
At the end of May there were 1,144 Immigration Act detainees in our prisons. Although the noble Lord, Lord Rooker, told the House that under the Act no one would remain in prison by Christmas, the other day the Home Office announced that Dover Young Offender Institution was in the process of being converted to be used as a place in which Immigration Act prisoners were to be detained and that it was opening in January 2002. There is a little inconsistency between those two statements. On the one hand, they are going to close down all the prisons used for Immigration Act detainees by Christmas and on the other they are going to open a new one in January next year. I should be grateful if the Minister in his reply can explain that discrepancy.
We are most grateful to the noble and learned Lord, Lord Hope of Craighead, for an excellent report. This has been a very useful debate. I hope that before long we shall have an opportunity of setting this directive side by side with all the remaining ones and that before any of them become law in Europe we shall have the opportunity of debating them together.
Viscount Bridgeman (Conservative)
My Lords, as an English member of the Institute of Chartered Accountants of Scotland, I feel that I am permitted to show off by referring to the noble and learned Lord, Lord Hope of Craighead, which is the correct pronunciation. But we are indeed grateful to the noble and learned Lord and his committee for this detailed, balanced and perceptive report. It was a great pleasure to hear the noble Lord, Lord Goodhart, as a member of that committee also speaking with such authority.
The noble and learned Lord's committee has recognised the political commitment to develop a common asylum policy. It has rightly highlighted the dilemma which faces all the members of the Community: on the one hand, to have regard to human rights when addressing the problem--which will certainly not go away--while on the other hand addressing the problem--which also will certainly not go away--of the ever-increasing flood of applicants for asylum. That is a factor which is virtually certain to be exacerbated so long as, for example, the unsettled conditions in the Balkans persist.
The committee has drawn attention to two important matters. The first is the ability given to member states under the present directive to derogate from certain safeguards. This is not a satisfactory position. Tampere envisaged a two-stage system. This may be the recognition of the diversity of practice among member states, but the reality is that it gives members the ability to derogate from the principle that appeals should have a suspensive effect. I note that the indication from the Commission contained in the directive is that the flexibility given to members to derogate in certain key areas should be restricted. It does not state "abolish", and I urge Her Majesty's Government to put pressure on the Commission to ensure that, in the second stage, these exceptions should be brought under control at an early stage.
The other important matter which the Commission addressed was in the area of safe havens. Several noble Lords have voiced concerns about the current situation. We accept that time may be needed to adopt a common definition of safe havens and safe third countries. The committee has rightly drawn attention to the risks of returning an applicant to an unsafe country of origin. It stated that the potentially devastating consequences are too great to justify the original "safe country of origin" concept. The noble and learned Lord, Lord Hope, and the noble Lord, Lord Goodhart, both put forward valuable explanations to the background of that.
On these Benches we are, in principle, supportive of the Government in their attempt to address this problem. In the last Parliament, my noble friends Lord Cope of Berkeley and Lord Astor and I were privileged to be members of the Home Office Opposition team under my right honourable friend Ann Widdecombe. I think that we had a constructive relationship with Mr Jack Straw and his Minister in this House, the noble Lord, Lord Bassam. For domestic reasons of which noble Lords will be aware, our present team cannot yet be named, but I hope that our constructive relationship with the noble Lord, Lord Rooker, will continue.
However, we must recognise the particular attractions which the United Kingdom holds for the potential asylum seeker. These were highlighted in the report of the Home Affairs Select Committee in another place. It enumerated the pull factors which the United Kingdom exerts. I paraphrase these without comment: the perception and availability of social security benefits; the more generous interpretation of asylum law; slow decision-making on asylum cases; lack of an efficient removal system for people refused asylum; access to public services such as free health, education and housing; and scope for living in the country without documentation. The committee went on to note that people living both within and outside the UK seemed to have exaggerated impressions of the generosity of UK social security benefits for asylum seekers, but also suggested that perceptions may be more important in attracting people than is the reality.
The same committee highlighted the dilatory policy of removals, which is a point on which we take issue with the Government, although we are pleased to note that last week the Minister referred to the extra two-pronged approach to asylum seekers which is now being produced, first, by the caseworkers and, secondly, by the Immigration Service. But we also note the smaller percentage of successful applications, which fell from 17 per cent in 1998 to 10 per cent in 2000. I should be grateful for the Minister's comments on those figures.
A further recommendation from the committee, which I know is being implemented by the Government, is the increased practice of advance border controls. In the case of the United Kingdom this is of course primarily France. We should all be pleased about the increased co-operation being demonstrated by the French Government in this regard. I was also pleased to hear in the earlier debate today details of the Minister's visit to the facilities on the other side of the Channel.
We have questions on two aspects of the Government's present policy on asylum seekers. The first concerns the system of vouchers, a matter referred to by the noble Lord, Lord Judd. I agree with him that vouchers can be humiliating, especially in the crowded check-out of a supermarket. The insistence under the regulations that no change be given has the effect that asylum seekers with vouchers frequently find themselves paying more than UK residents. This is a situation which your Lordships will recall both the national aid agencies and the TUC found unacceptable. As I understand it, that was the reason for the Government instituting an inquiry. I share with the noble Lord, Lord Judd, the wish that the report comes out as soon as possible.
We also have reservations about the dispersal system. There is certainly a lack of co-operation on the part of many local authorities outside London and the South East, where there is abundant evidence that families are being discriminated against on grounds of cost. The attitude of, "Let the Government come up with the money and then we will talk", seems to be prevalent. In the meantime, local authorities in the South East are left footing the major part of the expense. The experience in Kent--the authority most affected--springs to mind.
We should like to see secure reception areas. These would send a clear signal to economic migrants who abuse the system that all asylum seekers are liable to be detained. Several references have been made to the language problems of asylum seekers. We believe that these secure, well-ordered centres should include language, legal and social welfare support to ensure that genuine asylum seekers are absorbed into British society with the minimum of difficulty.
I have sought to emphasise the problems facing the United Kingdom in the current climate of mass and increasing pressure on asylum. However, the report referred to the whole Community. Over the centuries, the United Kingdom has a record second to none of giving asylum to--and, indeed, benefiting from--those fleeing persecution. We would like to think that in that regard we are a role model, a point emphasised by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Goodhart.
But we are part of the Community. The committee has done Parliament a service in providing such a valuable and constructive study and in assessing these urgent and difficult problems, in particular the problem of enforcing minimum standards, which some countries, for whatever reason--political, geographical or simply through pressure of asylum seekers--find it difficult to observe. I very much look forward to the Minister's response.
Lord Rooker (Minister of State (Asylum and Immigration), Home Office; Labour)
My Lords, I shall do my best to answer some of the detailed questions that have been raised during the course of the debate. However, there are one or two matters that I first wish to put on the record. I congratulate the committee and the noble and learned Lord, Lord Hope, on producing the report. As I said in the earlier debate, I appreciate that an enormous amount of background work has been done by Members of the House. It has been a very detailed inquiry into the Commission's proposals.
We of course welcome the endorsement given by the report for the concept of a common European asylum system. We are actively participating in the process and taking a lead in pressing for swift progress towards getting some meaningful minimum standards. It is only right that asylum seekers should expect to receive similar treatment regardless of which member state considers the application. It is very important that we do not play one state off against another and that we do not play asylum seekers off against themselves. There are clear benefits for the UK, which are self-evident, in having a more level playing field in terms of the treatment of asylum seekers. Therefore, we shall look to opt in to all the measures in the asylum field unless they directly impact on our ability to maintain our frontier controls. The UK has adopted all the measures in the asylum field to date. A decision has yet to be made on the reception of asylum seekers, but that is hardly surprising since the issue has only recently arisen. Our presumption will be to opt in to the measures where we can.
We cannot expect harmonisation to be brought about in one go. Practices vary enormously among member states. Therefore, we support the approach of the European Commission in introducing minimum standards in the short term. We are taking a lead and an active part in helping to set the minimum standards for procedures. But the matter is complex. I freely admit that progress has been slow.
We consider procedural standards in the UK to be high. We have nothing to be defensive about in the way in which this country has treated asylum seekers as compared to other countries. I am not saying that our procedures are perfect but the standards are high. We do not expect to have to make significant changes in order to comply with the directive. Where we need to do so, we stand ready to comply with the required changes.
I must also emphasise that harmonisation will not merely benefit member states; it will also benefit asylum seekers themselves. Procedural guarantees will be established where none existed previously. It is important for asylum seekers and those representing them to appreciate that those procedural guarantees will be established.
I do not want to be churlish, but there is an assumption that the purpose of harmonisation is to lower standards. That is not the case. There is no reason why a member state would need to use EU proposals as an excuse to lower standards. I want to make it absolutely clear that there is no intention to lower any of the standards in the UK where the minimum standards are set below current UK levels. I cannot make it any clearer than that. We are not seeking to lower standards. In some ways it can be compared to the minimum wage: raising the floor does not imply lowering the ceiling. That is a fair point to make. This includes procedural guarantees for the applicant, including access to legal advice, explanation of the process and a swift determination of the claim. But it must also include procedures that protect the asylum system from abuse, such as the use of accelerated procedures in certain circumstances.
We hope to see some revisions to the text of the proposals. For example, some of the time limits are generous and could create delays. We should prefer to see targets for various stages of the process rather than fixed time limits which are inflexible and without meaningful sanction.
We note concerns over the designation of safe countries of origin and safe third countries. These are useful concepts if used with care and restraint. They are not the first tool, as it were, for which we should reach. We believe it right that the directive should permit the use of these concepts. It does not follow that they will be misused. They are already widely used--particularly the concept of the safe third country, which is used as a tool to combat secondary migration. The directive provides some safeguards, but we accept that the current text requires improvement. We shall seek to do that during the course of the current negotiations.
We note also concerns about procedural safeguards such as providing information in a language that the applicant understands. The idea that that there would not be such provision beggars belief. I do not know how far it is generally known that the United Kingdom already provides explanatory notes in 33 languages. We do not provide them in 150 dialects; we provide them in 33 languages. I freely admit that the choice of language is targeted at those countries from which most asylum seekers come to the UK. That makes sense. If there is a serious deficiency in that list of 33, we shall add to it. It is not the ceiling, but we are already making provision to that extent. It cannot be held against us that we are not providing information in the languages of the asylum seekers.
I shall touch briefly on some of the points raised in the debate. This is where my honeymoon period definitely runs out. I am grateful to my noble friend Lord Judd for his remarks, but he has invited me to do something that I am not prepared to do; namely, to pronounce in a definitive fashion on the voucher system in advance of the publication of the review. Judging by what I have read and studied, and leaving aside the issue of principle, clearly many practical and operational difficulties arose with the introduction of the voucher system. People were told that they could not use them in some shops, or that they could not buy a certain product with them. That kind of situation caused many problems, including delays, queues, and people feeling that they were being looked at and considered to be different because they did not have proper money.
This is probably against myself, but I have to say that the nature of my former constituency was such that I had a 35 per cent ethnic minority; and, indeed, Birmingham has taken a good share of asylum seekers. Until the date when I legally ceased to be a Member of the other place--5 o'clock on 14th May--I had not dealt with a complaint about vouchers. I had dealt with many other cases relating to housing and other issues, but I had not even seen a voucher. Obviously, I have seen one since I moved to the Home Office. I am not saying that because I had no knowledge of any such cases there were no problems, but I have reached the point where I have to admit that I do not have the hands-on experience to share with the House that others clearly have. I am not drawing massive conclusions from that, but I am not prepared to pronounce on the principle in advance of the publication of the review.
I believe that the noble and learned Lord, Lord Hope, and another speaker, talked about torture cases. I would be horrified to learn that we were not dealing appropriately with these allegations. As for the cases that were mentioned in press reports either last week or the week before, I can tell the House that we have asked for them to be looked into. At one prison that I recently visited, one of the detainees was thought to have been a possible victim and had been placed on a one-to-one 24-hour suicide watch. There is a serious issue to be considered in that respect. It is not our intention in any way to mistreat these people, or not to take seriously their allegations of problems relating to torture. It is an open invitation with specific cases; indeed, it is very difficult to raise the generality. However, I should like to know about other specific cases, as would my colleagues at the Home Office. We treat such matters extremely seriously. It would be a fault in our system if we were not addressing the issue.
Perhaps I may also touch on the issue raised by the right reverend Prelate as regards the Liverpool case. I cannot go into the detail, but I can probably give the right reverend Prelate more of an answer than I thought I could when he told me privately about the case that he would mention--though I was not quite certain which one it was. There have been problems over the landmark location in Liverpool regarding the two tower blocks. They have been investigated. Both the police and NASS have separately investigated. There was an arrest but no charge, and police inquiries have been conducted.
On the basis that I cannot operate on a hunch but only on evidence, I can tell the House that if the police find evidence and serious charges follow the arrest, we would have to take the matter seriously. We would have to act upon that. However, that is not the case. Although I have not taken extra advice on this today, as of Wednesday or Thursday of last week investigations and inquiries had been undertaken both by NASS and the police. As regards some of those who made the allegations, it is true that we do not want to send them back. There is obviously friction between individuals; indeed, that is fully understandable. However, I have to point out that asylum seekers cannot pick and choose where they go. We have offered to remove them from the church where they have taken refuge and to take them to Sunderland.
We have looked into the matter, and there is no evidence whatever to suggest that there is any connection with the location in Liverpool and that in Sunderland; for example, allegations that someone will be "duffed up" and that information has been sent from one place to another. As I say, that has been looked into. We cannot allow people to choose where to go under the dispersal arrangements. It would cause absolute chaos. Indeed, to suggest that we have put everyone back in the South East, where in the main they all arrive, is totally unacceptable. That is why the dispersal system was set up in the first place and it has been very successful by and large. No one is saying that there are no problems, but it has considerably eased the pressure on the South East.
I was asked about the backlog of applications. First, I shall deal with refusal rates. Refusal rates are roughly at the same rate they have always been. However, I shall not argue about the odd percentage. The refusal rate overall is roughly 75 to 80 per cent. In places such as Oakington, where people have gone for special reasons--by and large because their applications are fast tracked--the refusal rate is about 94 per cent. However, as I say, the refusal rate overall is about 75 to 80 per cent.
The noble Lord, Lord Avebury, asked whether applicant states would be examined on the directive. All applicant countries will have to comply with and implement EU laws--there is no question of that--including the directive when it is passed. During the examination of an applicant country prior to accession, the implementation of asylum law will be scrutinised. If assistance is needed, it will be given where necessary. However, as I say, all applicant countries will have to comply fully with EU laws. There is no "let out" in that respect.
I was asked about the budget. The Immigration and Nationality Department's budget will increase by about £2 billion over the four years ending March 2004. Since January 2000, IND has acquired 4,000 extra staff--it has virtually doubled its staff--including 1,000 extra immigration officers. We have expanded the appeals system by trebling the number of courtrooms to 103, doubling the number of sitting days and increasing the judiciary by 40 per cent resulting in a massive increase in first decisions. I am talking about proper decisions here. Reaching a decision quickly does not mean that it is faulty. Some 133,000 first decisions were reached in the last financial year--up from about 57,000--as a result of the extra staff and training. The backlog now is down to 27,000. That huge increase in first decisions will result in an increase in appeals. We hope that the increase in the number of courtrooms, the number of sitting days and the judiciary will tackle that matter, but that will inevitably be difficult.
I was asked about the non-compliance refusal rate. An asylum seeker who reaches Britain must fill in the appropriate form. Help will be provided to fill in the form. There have been difficulties in that regard to which I shall come. The non-compliance refusal rate has reduced significantly since the last quarter of 2000 when around 40 per cent of refusals were made on the ground of non-compliance. That was a high figure. Over the past three months non-compliance refusals have accounted for about 22 per cent of refusals. That is due in part to the creation of a PO box number specifically for the return of the relevant statements. That was set up only on 25th November last year to assist internal processes. The figures for non-compliance were much lower in previous years. I suspect that the present situation is affected by the dispersal system, the need to keep track of people and the faster decision-making process. Under the old system if people did not fill in the relevant form, we did not bother about it. We did not have sufficient staff to open the sacks of mail. We are working hard to tackle that situation.
As regards the situation in Dover, I speak without the benefit of up-to-date advice but the noble Lord, Lord Avebury, made a legitimate point. I hope that my answer will bear examination in Hansard. Let us make clear that we have never said that we would not detain asylum seekers. We want to get them out of our prisons. I recently visited Walton Prison, the largest prison in the country; it has about 1,300 inmates. There have been recent changes. We have had a huge increase in female prisoners. I do not remember the names of all the prisons but one prison now has a female rather than a male population to give extra capacity. We can then move the detainees out of Rochester Prison and have a dedicated establishment in Dover. I regret that I cannot remember its name. It will not be like a prison. They will be detained but not in what I would call the prison estate. Some of those in the Dover establishment may be detained prior to removal but removals will increase. We have made that clear. The current figure is 800 to 900 a month. We aim to achieve a target of 2,500 a month by the end of this financial year, next March. I do not deny that that approach will cause difficulties. There will be some tough decisions. Some may be detained prior to removal. I gladly give way.
Lord Avebury (Liberal Democrat)
My Lords, will the establishment--it was Dover YOI and is now being used to detain immigration Act detainees--be run under the detention centre estate with detention centre rules? It will not remain part of the Prison Service.
Lord Rooker (Minister of State (Asylum and Immigration), Home Office; Labour)
My Lords, my answer is that I hope so because it is our intention to get people out of prison. But we shall still have detention. I cannot believe that I am wrong. That is part of the process. It is not happening at present; the change has to be facilitated. We have just made the announcement. We have only just told the three Members of Parliament where changes in the estate in their constituencies are involved.
The honeymoon period has come to an end: there is only one day left of this Session. However, I hope that I have put the Government's view in context. I thank the committee. There is much work still to be done on the directive. I have no doubt that we shall return to the issue before it is finalised.
Lord Hope of Craighead (Judge)
My Lords, I am most grateful to all noble Lords who have taken part in this debate. Perhaps I may say a particular word of thanks to the noble Lord, Lord Goodhart, for his kind words and to the Minister for his reassuring and constructive response.
It has been interesting to listen to points raised about vouchers and reception conditions in detention. It tends to underline the point made by the noble Lord, Lord Avebury: that in moving towards a uniform system, it would be helpful to have a debate so that we can view all the subjects in their full context. One has been drawn into a discussion on vouchers and the conditions of detention. Those issues were not covered in any detail in the report but they will be covered in future reports.
I was struck by a remark by the noble Lord, Lord Judd. He said that asylum is about an individual in an individual situation. That phrase struck the same note that we sought to strike. As a statement of principle of the way forward in dealing with applications by asylum seekers it seems about as good as one could expect. I am most grateful for all the contributions. I commend the report to the House.