Minimum Standards in Asylum Procedures: EUC Report

Part of the debate – in the House of Lords at 9:20 pm on 23 July 2001.

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Photo of Lord Avebury Lord Avebury Liberal Democrat 9:20, 23 July 2001

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.