Asylum (Designated States) (No. 2)Order 2005

– in the House of Lords at 4:05 pm on 24 November 2005.

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Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 4:05, 24 November 2005

rose to move, That the draft order laid before the House on 24 October be approved [8th Report from the Joint Committee].

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, the subject that we are dealing with today will be familiar to noble Lords from debates on previous orders that added countries to the list of countries to which the non-suspensive appeal provisions in Section 94 of the Nationality, Asylum and Immigration Act 2002 apply; this is the fourth order. There is currently a total of 14 countries on the list, added between April 2003 and February 2005, and the order would add to the list, first, Mongolia and, secondly, Ghana and Nigeria in respect of male applicants only.

Before moving on to the specific additions of Ghana, Mongolia and Nigeria, noble Lords may find it helpful if I briefly recall the main elements of the non-suspensive appeals process. An unsuccessful asylum or human rights claim made by a person entitled to reside in a designated state will be certified as clearly unfounded unless the Secretary of State is satisfied that the claim is not clearly unfounded. The effect of a clearly unfounded certificate is that there will be no in-country right of appeal against the refusal of the claim; the right of appeal will be exercisable only from outside the United Kingdom.

Section 94 of the Nationality, Asylum and Immigration Act contains a provision to add countries to the list by affirmative order, but only where the Secretary of State is satisfied that there is, in general, no serious risk of persecution of persons entitled to reside in that country, and that removal to that country of an individual entitled to reside there would not, in general, breach the United Kingdom's obligations under the ECHR.

In considering the addition of these countries to the list of designated countries, we have taken this legal test as the starting point. We have also taken full account of the country of origin information that we publish. We are satisfied that Mongolia meets this test. Looking a little more closely at the situation in Ghana and Nigeria, while we are satisfied that the test is met in relation to males entitled to reside in those countries, we are not satisfied that the test is met in respect of women at the present time. In both countries, the evidence suggests that currently women are not able to access the level of protection from the state that is necessary in order for the legal test to be satisfied in respect of women.

Inclusion on the list reflects a general level of safety for those to which it applies, not a total absence of any mistreatment. We are not saying that any of these three countries, or any of the 14 other countries on the list, is safe for everyone. No country would meet that test. We are saying that Mongolia is safe for most people, and Ghana and Nigeria are safe for most men.

As inclusion on the list reflects a general level of safety, not a total absence of mistreatment, we continue to give every asylum and human rights claim from a resident of a designated country full consideration on its individual merits. A claim would not be refused or certified as clearly unfounded unless we were satisfied, after individual consideration, that the claim fell to be refused and certified.

In considering the addition of these countries, we took into account our published country of origin information material and consulted the independent advisory panel on country information on that material. At the panel's meeting in September 2005, the information on these countries was considered and the panel found it to be an accurate and balanced representation of the source material and country conditions. Noble Lords may ask why we are proposing the addition of these countries at this time. While we are committed to providing a safe haven to genuine refugees and others who require our protection, we are determined to continue to tackle abuse of our asylum system.

The powers under the 2002 Act have resulted in a significant cut in the number of asylum applications from the countries listed previously. For example, the intake of new applications from those countries that were designated in the 2002 Act—the then 10 EU accession countries—fell by 97 per cent from October 2002 to April 2004 when the states concerned became members of the EU and the non-suspensive appeals designation effectively ended. That compared with an overall fall in intake of 70 per cent over the same period.

For the countries that were added to the list on 1 April 2003—Albania, Bulgaria, Jamaica, Macedonia, Moldova, Romania and Serbia and Montenegro—intake fell by 83 per cent from March 2003 to September 2005. Overall intake fell by 51 per cent in this period. There was a similar and very significant fall in intake from those countries added to the list on 23 July 2003—namely, Bolivia, Brazil, Ecuador, Sri Lanka, South Africa and Ukraine. Intake from those countries fell by 66 per cent from June 2003 to September 2005, with the overall intake during that period falling by 39 per cent. Those figures exclude Bangladesh, which was removed from the designated list on 22 April 2005. With regard to India, which was added to the list on 15 February this year, intake fell by 46 per cent from March 2005 to September 2005, with the overall intake during that period falling by 1 per cent.

We argue that these figures show how effective the non-suspensive appeal powers are and that they are making a significant contribution to our overall asylum strategy. We believe that the addition of these further three countries—Mongolia and, in respect of men, Ghana and Nigeria—will further prevent failed asylum-seekers attempting to frustrate their removal from the United Kingdom by unnecessarily prolonging the appeals process. Designating a country for the purposes of non-suspensive appeals provides a disincentive for people with no genuine protection needs misusing the asylum process. That leads to enhanced public confidence in the overall asylum system, a reduction in intake, a speeding-up of the process and a consequent releasing of resources which can be used to improve performance in other areas.

This order is a sensible and measured step towards the increased use of non-suspensive appeals. I beg to move.

Moved, That the draft order laid before the House on 24 October be approved [8th Report from the Joint Committee].—(Lord Bassam of Brighton.)

Photo of Baroness Seccombe Baroness Seccombe Deputy Chief Whip, Whips, Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Assist the Home Affairs Team)

My Lords, the noble Lord has told the House that the legal test for designation is met in respect of men, but not yet in respect of women in Ghana and Nigeria. I understand that the evidence suggests that women are at risk for a variety of reasons, including the horrific practice of female genital mutilation, trafficking, domestic violence and forced marriage. I hope that the Minister can reassure me that great care is taken to ensure that women are not put in a position in which they are sent back to places where such things can happen to them. Female genital mutilation is very much disliked in this House and next week we have an Unstarred Question on this very subject. We all feel horrified by the whole practice. I should be grateful if the Minister could assure me on that point. We have 14 countries with the addition of three. In how many countries do women meet the same criteria as men?

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs 4:15, 24 November 2005

My Lords, the proposition that certain states should be designated as intrinsically unlikely to persecute anyone on account of his race, religion, nationality, membership of a particular social group or political opinion, and that it is reasonable to deny a person making such a claim a right of appeal, made us uneasy when it was first advanced by the Tory government in the Asylum and Immigration Bill 1996. At that time, we were supported by the Labour Party in arguing that it violated the principle that applicants for asylum should all be treated in the identical manner.

As I said in 1996, if certain countries are singled out as places where there is, in general, no serious risk of persecution, it is put into the minds of the officials who deal with applications from citizens of those countries that the cases before them are likely to be bogus, which will subconsciously influence their decisions. The statistical evidence would be the number of applicants from designated states granted asylum or other forms of leave to remain by officials of the IND before and after designation. If the proportion of successful applications fell, there would be a strong prima facie case for saying that the reduction was an artefact of the designation and had nothing to do with the merits of the applications.

Ghana is interesting because it was on the Tory safe list in 1996. It came off in 1999 when the Labour Government effectively re-enacted the 1996 Act power to designate countries as safe, but with a new list that did not include Ghana. Between 1996 and 1999, 25 persons from Ghana were granted asylum on their initial application. In 2000, that figure shot up to 40 and, in 2001, it was 50. Your Lordships may think that taking Ghana off the safe list had some influence on those figures.

In the debates on the then Immigration and Asylum Bill in 1999, Lord Williams of Mostyn did not seek to justify the departure from what had always been one of the main planks of asylum policy on grounds of principle. His case was that the four countries being designated—Canada, Norway, Switzerland and the United States—were manifestly safe and that the Secretary of State's certification that in each case it was safe to remove a person to one of the countries designated was subject to judicial review. After the appalling evidence that we have had of ill treatment of detainees in Guantanamo Bay, I am not sure whether Lord Williams of Mostyn, if he had still been with us, would have maintained his position about the safety of the United States. That shows how rapidly conditions in a particular country can change.

The noble Lord mentioned Bangladesh, which is another illustration of the fragile nature of any such list. It was added in 2003 and two years later it had to be removed, after the accumulation of a weight of evidence of repression and physical attacks on religious, ethnic and secular minorities and the official opposition, including on 21 August 2004, the attempted assassination of the leader of the opposition, Sheik Hasina, when 24 people were killed and scores were seriously injured.

I am not saying that conditions in the three countries now to be added are anything like those in Bangladesh; only that circumstances may change rapidly. The Explanatory Memorandum says that there have been some grants of asylum and of discretionary leave to remain to applicants from each of the countries that we are looking at. As the noble Lord has acknowledged, the risks are not zero. I work it out that 110 people were allowed to stay in 2004 and the first half of 2005, but we are not told whether the grants were made on application or on appeal. I hope that we can have that information: I gave the Minister notice that I would ask for those figures. If the successes were all on appeal, we have to acknowledge that 60 or 70 people a year will be sent back to these countries in circumstances where they would have been allowed to stay if they had retained the right of appeal which is now being taken away from them.

We are not told what the relative experiences of men and women applicants have been in the cases of Ghana and Nigeria, even though we are now being asked to differentiate between men and women applicants from those two countries. I can understand that there may well be circumstances in which women are more likely to have a genuine fear of persecution. The Home Office told the Immigration Law Practitioners' Association that the reasons for limiting the designation in this way were, as the noble Baroness said, the three problems of trafficking, domestic violence and female genital mutilation. The Country of Origin Information Service's report on Ghana quotes reports which indicate that widespread violence is perpetrated against women there, even though it has a Ministry of Women's and Children's Affairs and active women's NGOs. However, they have to contend with traditional practices and social norms that discriminate against women and deny them their statutory rights. In that cultural atmosphere, it would be surprising if women did not have some reason to fear persecution or, at least, to fear that they were not being given sufficient protection by the government against non-state agents of persecution.

In the case of Nigeria, I wonder what,

"information material relied on by the Secretary of State", was considered by the advisory panel as an accurate and objective representation of conditions there, because there is no report on the Country of Origin Information Service website. We were very much in favour of the institution of the advisory panel, but it is not a substitute for scrutiny by Parliament of the evidence on which the Secretary of State relies. If the Minister is going to reply that it was the Nigeria report by the old Country Information and Policy Unit on which he relied, that document considered the position up to 1 March this year, and a lot could have changed since then. These reports were supposed to be updated every six months, but they quite often missed the deadline. It is a pity if the new COIS, which is replacing the CIPU, has started off on the same footing, particularly so when it must have been well aware that we were going to look at the information as a result of this order coming before Parliament.

The CIPU report does not mention the problems faced by women under the Sharia law in some Nigerian states. I wonder if the advisory panel had any comment on this omission. There were two cases in Bauchi State in 2004 in which a woman was sentenced to death by stoning for adultery, although in both cases the conviction and the sentence were quashed on appeal. But women are at risk as long as this cruel and unusual punishment is mandatory for the offence of zina, or adultery.

The Centre for Islamic Studies at Ahmadu Bello University in northern Nigeria has published a very useful study, Promoting Women's Rights through Sharia in Northern Nigeria. The study was supported by DfID and the British Council. The report states that some traditional practices that are harmful to women, such as forced early marriage, have been shown to be un-Islamic. But on the question of zina, the study looks only at whether pregnancy should be treated as proof of the offence, and makes no comment on the mandatory punishments, which I understand are laid down in the Qur'an, of 100 lashes for unmarried offenders, and of stoning to death for married offenders. Nor could the authors of the study agree on the way in which evidence of pregnancy should be dealt with by the Sharia courts—a matter which they referred to the ulama, or Muslim clergy, for a final ruling. There is nothing in either the Qur'an or the Sunna to indicate that the court should consider whether the woman was a voluntary participant in the sexual act which led to her pregnancy.

So in theory a woman who is raped and who becomes pregnant as a result of being a victim of rape may nevertheless be subject to that penalty, because there is no mens rea involved in the proof. Sentences of that kind have indeed been carried out, even on minors, in other countries, where the hadd offences apply. Clearly any woman at risk of being convicted of zina would have a good case for being granted asylum. I agree with the noble Lord's presentation in the sense that women, in the areas where the sharia law applies, may have a much better case for applying for asylum than men.

On a more general point, this is the first time that we have singled out a particular group as subject to risk of persecution in a country that is otherwise seen to be safe for the majority of the population. That prompts a question whether the Home Office has considered the position of women in other countries which are already designated, as the noble Baroness said, and whether that power—it allows designation by reference not only to gender but to language, race, religion, nationality, membership of a social or other group, political opinion or any other attribute or circumstances that the Secretary of State believes appropriate—has been considered in relation to other characteristics apart from gender. The obvious example is sexual orientation, since it is well known that gays are targeted for harassment and violence in Jamaica, in particular. Stonewall and the National Secular Society have both expressed concern to me on that subject and asked me to raise it this afternoon.

May we have an assurance that when any new state is added to the designation list, there is a review by the COIS of the treatment by that state of its gay population and a recommendation on whether it should be exempted from designation? In particular, would the Government now carry out an assessment of the seven pages in the current COIS report on Jamaica, dealing with the precarious situation of gays in that country with a view to varying the existing designation?

As I said earlier, Lord Williams of Mostyn said that the Secretary of State had to certify that it was safe for each individual to be sent back to a designated state to be treated in a certain way. Could the Minister tell us, in each of the states already listed, how many applications there have been in each of the years 2002 to 2004, and in 2005 up to the latest convenient date, and how many of those in each case have not been certified? If the Minister cannot give the figures this afternoon, perhaps he could undertake to place them in the Library. When the cases have been certified, how many have been the subject of judicial review and how many applications for judicial review have been successful? If the Minister could give that information country by country, it would be very useful for practitioners.

The Immigration Law Practitioners' Association—ILPA—has already asked me to inquire whether, when a woman arrives in the UK with a man who is, for instance, her husband or another close relative, she will be alerted to the fact that if she is the primary claimant there will be no certification. The association also suggested that when someone from a designated country has been granted refugee status in the past, a close family member applying after designation should not normally be certified. I would be grateful for an answer on that point as well.

When the idea of safe states was first introduced by the Tories in 1996, we feared that it would undermine the principle that every individual application should be considered on its own merits. Coupled with the practice of fast-tracking the citizens of those states though Oakington, their chances of success in the exceptional cases when there is merit in the application are greatly diminished. As ILPA pointed out, those cases are likely to require specialist advice and information, which is not going to easily be assembled in the few days that they spend in Oakington. We understand, however, that designation is here to stay, and the best that we can do as an opposition is to ensure that it operates as fairly as possible. I hope that the Government will pay careful attention to the points that we have raised, and will let us and the practitioners have answers as soon as possible.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 4:30, 24 November 2005

My Lords, as ever, I am grateful to both noble Lords who have contributed to this short discussion. In particular, I am grateful to the noble Baroness, Lady Seccombe, for her short questions. The noble Lord, Lord Avebury, will have to bear with me while I go through his rather more complicated and discursive commentary on the issue. I take note, however, that, although the noble Baroness and the noble Lord have a different take on the order, at least the noble Lord, Lord Avebury, recognises the validity of the process we are engaged in. It is important, even if he does not entirely agree with its detail. I am grateful to the noble Baroness for her general agreement.

To answer the noble Baroness's question, we are confident that in all 14 countries women are protected in the way we set out in our criteria. We stand by that, and we think it is undoubtedly the case. With regard to perhaps the more important question the noble Baroness asked, whether we would return women to face female genital mutilation or other serious human rights abuses: of course we would not. It is for that reason, because of our concerns, that we have drafted the order in the way that we have for Ghana and Nigeria. If we considered if there was a genuine and active risk that a young girl or a woman would experience female genital mutilation or other serious human rights abuses, we would not return them to that country. The risks that women may face of genital mutilation or other forms of mistreatment in Nigeria and Ghana, as I have said, caused us to designate these countries in respect of men only, as described in the order.

The noble Lord, Lord Avebury, made some interesting general points. I ought to place on record that I am grateful to him for giving me notice of his questions in particular. I cannot promise to answer his questions with all the precise details this afternoon, but I will attempt to go through some of it. I will undertake to cover the more detailed points he asked me about and provide them in writing, place a copy of that in the Library of the House and share it with the Opposition Front Bench.

The noble Lord, Lord Avebury, started with his point about Labour's position in 1996. My response is simply that things have changed since then. We have had to take important steps to gain greater control over the asylum and immigration processes in the UK. I guess the realities of being a government and having made hard choices have had an impact on us. We have to deal with the reality as we find it, not as we would have wished it to be. That said, experience in opposition and our approach to matters of human rights generally, and to ensuring that we have a fair and reasonable process for processing asylum applications, have figured large in our policy. We have taken great care in framing the legislation in the way that we have so that it is fair and reasonable, even if at times it appears to be hard-nosed, because that is how we believe it should be approached.

I want to work through the points in the noble Lord's note to me, which was based on issues raised with him by ILPA. Referring to the noble Lord's questions is probably the best way. He asked how many people from Mongolia, Ghana and Nigeria have been recognised as refugees in the past three years. I have some statistics on that, relating to appeals outcomes determined by the Immigration Appellate Authority. For Ghana in 2004 there were 10 appeals allowed. As I see it, none was allowed in 2005. For Nigeria, in 2004 there were 40 appeals allowed, which is 4 per cent. I should say that the figure of 10 represents 2 per cent. For the three-quarters of 2005 for which we have records, a total of 25 appeals was allowed in Nigeria. In Mongolia, in 2004 there were 10; and for the three-quarters of 2005 reported on in Mongolia, five appeals were allowed. If the noble Lord wishes, I can give a male and female breakdown of that. However, if he is content to receive it in correspondence, I will happily provide it in that form. The noble Lord nods his assent.

The noble Lord then asked how many were recognised as refugees at the initial Home Office decision stage and how many on appeal. I have provided figures for appeal. On initial decision, in 2004 there were five grants of asylum for Ghana; for Mongolia, there were five; and for Nigeria there were five. The corresponding data for 2005 is zero in all three cases. So far as asylum and human rights applications from Ghana and Nigeria are concerned, I can provide a breakdown by gender for 2004. In both Ghana and Nigeria, there were five grants of asylum to females. So far as our records indicate, none has been recorded this year. The noble Lord also asked for a breakdown of applications and decisions by gender for Ghana and Nigeria. I believe that I have provided that data, and I shall happily furnish the noble Lord with the pieces of paper that relate to them.

The noble Lord asked about how Nigerian and Ghanaian women coming to the UK with men are alerted by the Home Office to the presumption of certification that will operate. All dependents of asylum seekers are advised that they can apply for asylum in their own right. It is perfectly possible to be both a dependent and an asylum seeker at the same time. For example, if a wife's asylum claim was successful but her husband's was not, the husband could stay as the dependent of his wife.

The noble Lord also asked whether, having taken the step of using powers to certify some but not all claims from a country, the Home Office would undertake to review all the countries on the designated list and consider refining its certification of claims from those countries. We keep the list of designated countries under review. We consider that all 14 of the countries presently on the list continue to meet the test for designation—the point that I made earlier to the noble Baroness, Lady Seccombe—taking account of the conditions for all residents across the whole country. Therefore, we do not consider that any changes are required to be made at present.

The noble Lord, Lord Avebury, asked whether the Home Office could say what percentage of claims from each of the countries on the designated list have not been certified in the past three years and could provide figures for the numbers of certified and non-certified cases. The proportion of refusals of asylum that have been certified across the current 14 listed states in the first nine months of this year is approximately two-thirds. The certification rate varies from country to country. This reflects the findings of the High Court that the IND treats each case on its merits and certifies an individual claim only where it is justified in individual circumstances.

The noble Lord's next point was whether the Home Office would confirm that it would not be appropriate to certify the claims of family members when members of the family whose claims are further advanced in the process have already been recognised as refugees. It is unlikely but not impossible that one family member's claim could lead to refugee status while another had a clearly unfounded claim, for example, where they were of different nationalities. As I mentioned earlier, the spouse of a refugee could remain as a dependant of their spouse. The same is, of course, true of dependent children of a refugee.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, I made a slightly different point. My point was that if a person had been granted asylum prior to the designation, and another family member enters the country after designation, would the Secretary of State refrain from certifying the latecomer in view of the fact that his close relative had been granted asylum before the designation came into effect?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I suspect that it would depend on the more precise details of the case. I understand the point that the noble Lord makes but it would be wrong of me to prescribe what would happen in each set of circumstances. However, the important point is that each case must be judged on its merits. The circumstances that the noble Lord described may well result in the outcome which practitioners seek. However, it is hard to be precise without a case and all the considerations to be taken into account in front of one.

The noble Lord made a number of other points, one of which related to fast track processes. The fast track processes that we operate have been found to be fair by the courts. We do not accept that persons having their claims determined at Oakington, for example, do not receive a fair hearing; we believe that they do and the courts have upheld that position. As I explained earlier, all claims are considered on their individual merits, whether or not the claimants are residents of a designated state. In that context it is worth adding that we keep states on the list under constant review but do not think that partial designation rather than full designation is appropriate for the states currently on the list. We are happy with the designations contained in this order.

The noble Lord referred to Jamaica. We have to make it clear that Jamaica is entitled to pass the laws that it does, whatever our personal views on that may be. While homosexual acts are illegal in Jamaica, we do not believe that means that the country as a whole does not meet the general test, nor that partial designation would be appropriate, as it is for the two states we are adding to the list today. Clearly, the point that the noble Lord makes about Jamaica may feature in an individual case on an individual application made by someone claiming that as a basis of persecution, but that matter can be dealt with on a case-by-case basis.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, no one is asking the Minister to give a decision off the cuff, as it were, but I did ask him whether the Secretary of State would agree to refer the question of partial designation in respect of gays, in particular in the case of Jamaica, to the advisory panel. Clearly, the advisory panel had advised the Secretary of State that men should be singled out in the case of Ghana and Nigeria, but if it has not been asked to advise on gays, perhaps it is time for the Secretary of State to take its advice.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, the noble Lord makes a valid point which I am sure will be relayed to the Home Secretary. Obviously, I cannot comment on what the Home Secretary's view on that might be. However, as I say, the issue can be dealt with on a case-by-case basis.

The noble Lord referred to the Country of Origin Information Service website. I believe that the point he made in that regard is not correct as I have the relevant print-out to hand.

We believe that the Nigeria report is on that website. If the noble Lord has had difficulty accessing it, I apologise, but I am happy to pass this to him. I think it indicates that he may well be wrong on that point.

I am grateful to the noble Lord for all of his questions and points, and apologise if I have not answered them all precisely. I have done my best in the time that I have, and we are happy to provide other details which the noble Lord feels may be missing. As I said earlier, we will happily share those with other of your Lordships who have an interest, and place a copy in the Library of the House.

On Question, Motion agreed to.