Clause 56 - no removal while claim for asylum pending
Nationality, Immigration and Asylum Bill
7:00 pm
Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)
I beg to move amendment No. 283, in page 30, line 44, after 'Convention', insert:
'or Article 3 of the European Convention of Human Rights'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to take the following amendments: No. 284, in page 31, line 5, leave out subsection (4).
No. 285, in page 31, line 10, at end insert:
'(4A) In this section the words ''other interim or preparatory action'' shall not include any action which may prejudice the safety of a person who has made a claim for asylum and shall preclude any contact with the authorities in or from his country of origin and any requirement to apply for a travel document of his country of origin.'
No. 286, in page 31, line 20, leave out subsection (3).
No. 287, in page 31, line 27, at end add:
'(5) In this section the words ''other interim or preparatory action'' shall not include any action which may prejudice the safety of a person who has made an appeal under section 60(1) in relation to a claim for asylum or an assertion that his removal would be contrary to the United Kingdom's obligations under Article 3 of the European Convention on Human Rights, and shall preclude any contact with the authorities in or from his country of origin and any requirement to apply for a travel document of his country of origin.'
Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)
Some important issues remain as we enter the last lap of today's sitting. The amendments are significant.
Amendment No. 283 would extend the definition of an asylum claim to include article 3 of the European convention on human rights on protection against torture and other forms of inhuman treatment. We sought to include that, as it appears to be accepted elsewhere in the Bill as part of the definition of a refugee. It would be simpler to have one straightforward set of protections against removal, rather than to have an individual who was threatened with removal taking an ECHR claim through the courts under the Human Rights Act 1998, as was suggested. That would be less satisfactory than an explicit statement in the Bill that the ECHR and asylum provisions protect equally against removal.
The other amendments would overturn the clause, which appears to contain its own work-around subsections. It sets itself up as a clause that protects individuals from removal while their claims for asylum are pending. However, subsection (4) contains large exemptions whereby the Secretary of State can effect removals almost in any way that he wants. The clause is not clear: it grants protection while granting ill-defined exemptions. We are trying to remove those ill-defined exemptions by defining them more clearly. I hope that the Minister will say what those exemption subsections mean. I also hope that she will give some thought to the ECHR provision, which would be better incorporated in the protection that the clause provides, rather than left as a separate legal process that would always be available, but would be unnecessary and cumbersome.
Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)
On amendment No. 283, consideration of asylum applications and claims that removal would be contrary to article 3 of the ECHR raise similar issues, but the two are not always synonymous. What applies to one will not always be appropriate for the other. I reassure the hon. Gentleman that we would not seek to remove someone if that resulted in a breach of our
obligations, but there is a difference between that and an asylum application. Although we will take account of our obligations under the ECHR, it is unnecessary to make explicit reference in the clause. Under section 6 of the Human Rights Act 1998, it would be unlawful for the IND to act in breach of a person's human rights. The amendment would not make that any more unlawful, and is therefore unnecessary.
Amendment No. 284 would restore the position that existed under section 6 of the Asylum and Immigration Appeals Act 1993, and would seriously impede the processing of asylum applications. Section 6 was replaced as it was an obstacle to the processing of applications. Under that section, if an illegal entrant applied for asylum, the application was refused, and the decision was sent by post, it was not possible to notify the applicant of his right of appeal because the setting of removal directions triggered the appeal. It was necessary to wait until the applicant had received the notification of the outcome of the asylum application before removal directions could be given. That would still be the case if we accepted the amendment, and is unnecessarily cumbersome. In 1999, Parliament accepted that it made more sense to be able to send the two decisions in the same envelope. We are therefore confused about why the hon. Gentleman would wish to revert to the pre-1999 position. Similarly in a deportation case, if the asylum application is refused, a deportation order has to be made to trigger the appeal to the adjudicator, so we cannot accept that amendment.
On amendment No. 285, the Government accept fully the need to safeguard the position of people who claim that they are in danger of persecution in their country of origin. However, we cannot accept that it will never be appropriate to make inquiries of the authorities in the country concerned if they can be done without putting an applicant or his family at risk. Amendment No. 286 is similar to No. 284, but would go far further, as it would apply to any appeal, not just asylum appeals. However, provided that the person concerned is not removed, which is the current effect of the clause, there is no reason why preparatory measures should not be taken. There is no need for everything to stop while the appeal is heard and then start again when it is finished.
Amendment No. 287, which I assume is intended as an alternative to No. 286, is also similar to one tabled to clause 56 and again would go further. We do not accept that in a case in which an applicant claims that he suffers from a medical condition so that it would be contrary to article 3 to remove him to his country of origin, there should be a statutory bar on our obtaining evidence from the Government concerned about the available treatment. Also, I do not accept that preparatory steps to document someone whose application for asylum has been refused should be suspended pending the outcome of any appeal.
I am sorry that I cannot be more helpful on the amendments, but I hope that the hon. Gentleman will accept my reasons for rejecting them.