Nationality, Immigration and Asylum Bill

Part of the debate – in the House of Lords at 6:41 pm on 17 October 2002.

Alert me about debates like this

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 6:41, 17 October 2002

I have noted what the noble Lord says. He says that that is the test to be applied. I am saying that this is what is reflected in the Bill.

Secondly, the Secretary of State must be satisfied that removal to that country of persons entitled to reside there would not in general contravene the United Kingdom's obligations under the European Convention on Human Rights. In addition to inserting these two constraints in the Bill, the Home Secretary has said that we would consult with the independent advisory group that is being established about the assessment of risk in any country which the Government is thinking of adding to the list. Should circumstances change for the worse in any of the countries added by order they can, where appropriate, be removed from the list by order. So I think that concerns about the possible future use of this provision are satisfactorily addressed by the amendment.

The amendments to Clause 107 provide powers similar to those in Clause 88 but apply to appeals under the 1999 Act rather than to the new appeal arrangements created by Part 5 of the Bill. By amending the 1999 Act, Clause 107 will enable us to take action against clearly unfounded claims as soon as Royal Assent is achieved without waiting for Part 5 of the Bill to be brought into force. With the number of claims from accession states running at around 250 per month it is important that the new measures are activated at the earliest possible opportunity. That explains our amendments to Clause 88 and Clause 107 in relation to the list.

I now turn to the various opposition amendments tabled in response to the government amendments to Clauses 88 and 107. These amendments are concerned with a number of issues: the persons of a listed country to whom the provisions apply, the order-making powers to add to the initial list of 10 countries, and the ability to include parts of a state as well as a whole state on the list. It is additionally suggested that the non-suspensive process should not include refusals on human rights grounds. There is also an amendment to Clause 107 which would have the effect that during the transitional period from Royal Assent, when Clause 88 will come into force, to when the rest of Part 5 comes into force there would only be non-suspensive appeals against asylum refusals and not against a decision to refuse on human rights grounds.

I shall deal with each of the amendments individually. Amendments Nos. 12A, 12G and 12H would have the effect of somewhat expanding the category of people within a listed country to whom the new provisions apply. Under the government amendments they apply to those who are "entitled to reside" in a listed country. The main group of people we have in mind are nationals of the country in question. But there are also some people who live in a country who have not acquired citizenship of it. One example is Estonia where, although residents legally living there may apply for and acquire Estonian citizenship, not all do so. We believe that such people should be included since Estonia is their home country.

The proposed amendments go further by including those who are "temporarily" entitled to reside in a country. That could embrace people who are, for example, simply visitors or students there. We would not want the provisions to extend to these kind of cases. This would turn the provisions into something akin to third country removals since temporary visitors to a listed country would have a separate country of nationality against which an asylum or human rights claim would normally be assessed.

We think it is better to stick with the unqualified term and not to use the other adverb proposed in the amendments; that is, a person entitled to reside "permanently" in a listed country. Use of that term could cause difficulties. For example, in the United Kingdom there are people who do not have British citizenship but have indefinite leave to remain here. But they can be removed in extreme cases where deportation action is taken. This illustrates that the issue of permanency is not always that easy to pin down.

Amendment No. 12B seeks to omit the power to add to the list of 10 countries. I explained in some detail the safeguards that exist for how those powers can be used. But I have no doubt that the powers are needed. As time passes, it is to be hoped that an increasing number of states will strengthen their human rights records, such that their designation under this clause may become appropriate. It would be wrong not to be able to respond to real world situations by taking a power to add to the list of countries considered to be generally safe. That would simply lead to undue time being taken up by regularly passing primary legislation to update the list. I have no doubt that an order-making power, subject to the affirmative resolution procedure, is the answer.

Amendments Nos. 12D to 12F and 12J would leave the order-making powers in existence but restrict the circumstances in which they could be used. Amendments Nos. 12D and 12J would enable an order to be made only where the Secretary of State was satisfied that there was no serious risk of persons being persecuted and no contravention of the United Kingdom's European Convention on Human Rights obligations in removing a person. At first blush, that seems a sensible amendment with which it is hard to argue.

The difficulty, however, is that it would mean that in effect the Secretary of State could designate a country only if it were safe for every one of its residents. I regret that such a situation, desirable as it may be, does not currently arise in the real world. There is always the possibility that one or two people in a given area will face persecution and that the removal of a person may occasionally breach the UK's obligations under the ECHR—possibly for reasons wholly unconnected with the country of intended removal. For example, there may be an Article 8 breach involving family life.

It is because there is always the possibility in an individual case of a person making out an arguable asylum or human rights claim that we have retained individual consideration of such claims and not included a provision for automatic refusal of cases from the list of safe countries. The corollary of that is that the condition for a state to be designated should be one relating to general rather than absolute safety.

Amendment No. 12E is along similar lines. It would enable a state to be designated only where there was "no risk" of persecution rather than where there was "no serious risk" of such persecution. We consider that we need to qualify the term "risk". The courts have noted the difference between a mere speculative risk that a person may face mistreatment if returned to their country and a "real" or "serious" risk that such mistreatment will occur. In the former case, a person will not have made out a well-founded fear of persecution; whereas in the latter case they will have done so, provided that the feared mistreatment amounts to persecution. So the word "serious" does not set as high a threshold as it may first appear. Rather, it distinguishes between speculative and concrete risk. A serious risk need not be a probability but it must be a reasonable possibility.

Amendment 12F is, I think, intended to remove the scope to designate part of a state. It would unnecessarily limit the provision to restrict its scope in that way. There will be cases where a defined area of territory will be generally safe, such that most claims from individuals living in that area are clearly unfounded. A recent example is Kosovo. Because Kosovo is not a state, it would be impossible to designate that discrete territorial area without a power to add part of a state to the safe country list. I cannot see the advantage of taking away the ability to designate in such cases, and I therefore cannot support such a restriction.

The final amendment on Clause 88 that I want to mention is Amendment No. 12K. Its effect would be to enable any of the 10 countries listed on the face of the Bill to be removed by order, should the Secretary of State consider that appropriate. It would be unhelpful to have such a power. Those countries are on the fast track to joining the European Union, so it is reasonable to suppose that they will continue to be safe countries until that time. It would not be helpful to leave open the door for legal challenges to the Secretary of State's refusal to delete one of those countries from the list. Such would be the risk with this amendment.

In the extremely unlikely event that matters turned for the worse in one such country, that would not lead to any removals in breach of our obligations, because in appropriate cases the Secretary of State would be satisfied that a claim was not clearly unfounded and would accordingly not certify the claim.

Perhaps I may deal briefly with the amendments proposed to Clause 107. They largely mirror those proposed to Clause 88, so I shall not detain the Committee by repeating arguments made about that clause. However, one set of amendments is different. Amendments Nos. 18A and 18B, tabled by the noble Lords, Lord Dholakia and Lord Avebury, would make a non-suspensive appeal possible only during the transitional period while Part IV of the Immigration and Asylum Act 1999 remains in force, in cases where there is a decision to refuse an asylum application that is clearly unfounded but not a human rights claim.

The effect of that would be that whenever a person put forward a human rights claim, he would be entitled to an in-country right of appeal, even if both that claim and the asylum claim were clearly unfounded. Such an outcome would defeat the purpose of the provision because, in the majority of cases, Article 3 human rights claims and asylum claims overlap considerably. That would make the non-suspensive appeal provision wholly ineffective. I do not know whether that is the intention of the noble Lords who tabled the amendment, but, having regard to the purpose of the government amendments, that is not something that we can accept.

I am sorry to have gone on for so long, but it is helpful to put in context our amendments and the amendments tabled to them. I urge the Committee to accept the government amendments for the reasons that I have given and to reject the proposed amendments to them. I beg to move.