Schedule 3 - Removal of Asylum Seeker to Safe Country

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 10:45 am on 22nd January 2004.

Alert me about debates like this

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism) 10:45 am, 22nd January 2004

I beg to move amendment No. 131, in

schedule 3, page 35, line 1, leave out sub-sub-paragraph (b) and insert—

'(b) from which a person will not be sent to another State in contravention of his Convention rights,'.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

With this it will be convenient to discuss the following:

Amendment No. 153, in

schedule 3, page 35, line 1, leave out sub-sub-paragraph (b).

Amendment No. 154, in

schedule 3, page 35, line 26, leave out sub-sub-paragraph (b).

Government amendments Nos. 132 to 135.

Amendment No. 155, in

schedule 3, page 35, line 42, leave out sub-sub-paragraph (b).

Government amendments Nos. 136 to 138.

Amendment No. 156, in

schedule 3, page 37, line 41, at end insert

'which is a member of the European Union'.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The provisions in clause 12 and schedule 3 replace and extend those in sections 11 and 12 of the Immigration and Asylum Act 1999. The amendments to schedule 3 deal with human rights claims in cases where applicants can, without substantive consideration of their asylum claim, be removed to a safe third country of which they are neither nationals nor citizens.

The provisions in schedule 3, and the various groupings that will result in practice, are very technical matters. Basically, however, the provisions in clause 12 and schedule 3 will facilitate the removal of asylum seekers to safe third countries where their asylum claims should properly be considered. The intention is to reduce the circumstances in which removal to safe third countries can be frustrated or delayed by unmeritorious claims about treatment in, or removal from, those third countries.

As regards the potential to make human rights claims, the general effect of the Government amendments is that schedule 3 will more closely mirror the approach taken in the safe country of origin provisions in part 5 of the 2002 Act. However, the amendments also recognise the particular status of those European countries that take part in implementing the Dublin arrangements, under which responsibility for asylum seekers is determined, and the supporting Eurodac database of fingerprint images, which is used to match images and ascertain whether someone has already made an asylum claim in another European country. The Dublin 2 regulation, which is a development of the original convention agreement, has introduced shorter procedural time limits for action on transfers. It does so on the basis of our shared commitment, as European countries, to dealing with the potential for what might be called asylum shopping—going from one country to another—and for the abuse of asylum mechanisms, which are undermined by the unmeritorious challenges that I mentioned.

As a result of the Government amendments, the schedule will contain four categories of country—not three, as originally proposed—and I shall set them out so that hon. Members can understand them. First, individuals who are removed to one of the states listed in part 2, all of which will participate in the Dublin mechanism after enlargement, will have no scope to challenge their removal on refugee convention grounds. Those countries will be deemed safe on refugee convention grounds.

In addition, the listed countries are deemed safe on human rights grounds only in the limited sense that they would not remove an asylum seeker to another country in contravention of article 3 of the ECHR—the narrow, so-called refoulement issue. For that group, any other ECHR challenge to removal will be certified, unless the Secretary of State is satisfied that the claim is not clearly unfounded. Such challenges could be based on article 3, in that the applicant could face inhuman or degrading treatment in that safe third country, or on article 8, in that removal from the UK could interfere with his or her private life. Judicial review is also possible on those grounds.

The amendments create a second, new group, in part 2. If removal is to a safe third country in that group, there is similarly no scope for challenge on refugee convention grounds. However, as states on that list will not be party to the Dublin arrangements, there will be no automatic safety provision relating to onward removal in breach of article 3. Instead, all human rights challenges to removal will be certified as

clearly unfounded, unless the Secretary of State is satisfied that they are not. In other words, the Secretary of State is required to certify on all human rights challenges.

Since the amendments split the first group into two, giving four groups in total, the third group of countries corresponds to the original second group in part 3 of the schedule as drafted. If removal is to a country in that group, there will again be no scope to challenge that removal on refugee convention grounds. To continue the graduated theme, however, there would be a case-by-case consideration of any ECHR challenge, to see whether the claim could be certified as clearly unfounded. That is a different approach to consideration of ECHR challenges. The fourth group, in part 4, corresponds exactly to part 3 of schedule 3 as drafted and provides for a case-by-case consideration of both the refugee convention and ECHR challenges to removal, to see whether they could or should be certified. Finally, the amendments align the order-making powers to add and remove countries with the established provisions on safe countries of origin in part 5 of the 2002 Act.

I appreciate that trying to work out what is in the schedule, what the amendments do to it and what that means in practice is complicated. As I have tried to explain, we are attempting to acknowledge that not all countries are the same in relation to potential human rights claims. We can have a graduated approach on a statutory basis to how we deal with human rights claims from the countries listed in the existing part 2 that are party to Dublin. We can make safe assumptions about how those countries would deal with a person who was removed to them with relation to article 3 and potential removal onwards. In other words, we can assume that they will not remove somebody in breach of article 3. Following from that, we take a progressively more cautious approach, in relation to the other groups of countries, to how human rights challenges may be dealt with under the law. The amendments split the initial first group into two, to ensure that, with the new second group of people, all human rights claims are subject to certification if a non-suspensive appeal is to apply.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 11:00 am, 22nd January 2004

Paragraph 5(4) applies if

''the Secretary of State certifies that the claim is clearly unfounded''

and amendment No. 134 will add further words to that. Is the certification by the Secretary of State judicially reviewable, or is it caught by removal of appeal or judicial oversight provisions earlier in the Bill?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

No. In relation to the provisions that I have outlined for the first group of countries and a human rights claim, if a claim is in connection with the view that the safe third country may breach article 3 by moving a person on to an unsafe country—the refoulement issue—there would not be a JR provision for that. Countries are deemed safe only under the limited provision of article 3 in relation to onward removal. For all other human rights claims and for all groups described in schedule 3 there will be a judicial

remedy. Provisions in clause 10 expressly exempt those areas from having the JR appeal process removed.

I shall refrain from comment on the non-Government amendments now to allow the Opposition to air their views, but I shall deal with them when I sum up.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I have a couple of questions for the Minister, and I shall keep them brief. So far as the list of countries in part 2 of schedule 3 is concerned, we have a protection whereby any country to be added to the list must be laid before Parliament for a resolution. However, I am concerned about the position described towards the end of the schedule. The Secretary of State can satisfy himself that it is necessary ''by reason of urgency'' to make an order without complying with that provision—I hope that I have understood the schedule properly. In other words, in urgent cases the Secretary of State can bypass Parliament entirely if he or she thinks that that is a good thing to do. I am sorry to see that potential for bypassing Parliament. What are the circumstances in which the Minister foresees the need to exercise that power?

My only other point is that the Select Committee on Home Affairs had something to say about these matters in its report on the Bill. The Home Secretary has obviously read those views carefully, and the Minister will be interested to hear them. If members of the Labour-dominated Home Affairs Committee are present, they might want to raise these issues with the Government. The Minister will remember that the Committee said:

''if the Secretary of State wishes to add further countries to the list . . . , he should append a written memorandum to the relevant Statutory Instrument, explaining the rationale for believing those countries to be safe.''

It also said:

''We also recommend that the Government should make a clear statement of the circumstances which might trigger a decision to seek parliamentary authority for the removal of a country from the list of 'safe third countries'.''

It went on:

''In particular, we expect that satisfactory mechanisms will be set up within Government to keep the human rights situation in 'safe third countries' under review, so that they do not remain on the list if that situation significantly deteriorates and they cease to be safe.''

I hope that the Minister can deal with those matters at some stage.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

These are complex issues, and the Minister has gone some way towards explaining and putting into context the Government's proposed changes. I think that I understand her approach of having different tiers, but it is still my understanding that, under the provisions, the protection allowing an asylum seeker to challenge their removal to a third country on the basis that their human rights were being breached would be removed. However, I accept that that does not apply for all countries. For some of them, that safety mechanism will be kept in place. Still, it is to be removed for removal to those third countries on her first list. That causes me concern. Our amendments would remove that element of the Government's proposals and put back in the Bill the ability to appeal on human rights grounds. That is important for a number of reasons.

I know that the Minister has dealt with this matter to some extent, but the House of Lords has certainly ruled that the right of appeal is necessary. It is important to retain it if we are to meet our obligations under the European convention on human rights. The Government say that we can still meet our obligations; the Minister argues that, in her first category, there would be no breach of our obligations, because we are listing 26 countries for which we do not believe that that obligation should be identified. I welcome her clarification on that point.

A layman could assume that the first wave of countries that the Government listed are safe, and I guess I buy the argument that it is hard to perceive circumstances under which someone could make a claim about their human rights in relation to that list of countries. However, the president of the Immigration Appeal Tribunal said when consulted on the measures:

''However good a country's human rights records may be, it is difficult to see that there could not be scope for an individual to show that he or she is individually at risk.''

It is interesting that even though we may assume certain things about those countries, the president of the IAT still believes that there should be a mechanism allowing a person removed to one of those countries to make a case about their circumstances. My reading is that the Government will be doing away with the individual's ability to make that case.

It is hard to think of examples. I will be perfectly honest and argue against myself: the examples that we have been given by the lobbying organisations are not clear to me. They quoted, for example, a lack of available medical care in the third country to which the person is told to go back. To a greater extent, I buy the argument that there may be family circumstances that mean that there is a difficulty in going back to a country, and that could be a breach of a person's rights; there are some issues there. The case that I buy most is that a country on the list of 26 may take a different approach in its interpretation of the human rights convention. I am thinking particularly of some of the accession countries. Is there not a danger that we could send someone back to one of the countries on that first-wave list, without giving them the right to appeal against that decision, and discover that that country had a different interpretation of the convention from us? That could still be a danger among the first wave of countries.

Even if the Minister does not buy any of those arguments, there is still the provision for the Home Secretary to prevent an appeal when he does not believe that there is any merit. There is already a system whereby he can intervene if he believes that a person is trying it on, for want of a better phrase. With that safeguard, I do not understand why the Government want to take away the rights currently in place. I hope that the Minister can give me some reassurance on the concerns that I have raised, especially regarding the different interpretation of the convention in the 26 countries. I hope that the Minister will reconsider these issues.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 11:15 am, 22nd January 2004

This is quite a technical area, and I want to be sure that I am clear about what the schedule proposes. The Minister explained that there is a gradation, starting with countries on the list in part 2 and working gradually into new part 2A and part 3, which suggests that the countries in part 2 are the safest. I am not sure how that relates to part 4, which deals with countries certified as safe for an individual. If I read part 4 correctly, it would almost not matter what countries were on the list in parts 1, 2 and 3, because it would be possible to use part 4 in an individual case. That concerns me.

Will the Minister comment on that and on the relationship between part 4 and parts 1, 2 and 3? I understand the argument about gradation, but I am not clear about how part 4 fits into that or how it is possible to pick an individual and certify a particular country for that individual.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I will deal first with the Opposition amendments, and then pick up some of the points that have been made.

Amendments Nos. 153 to 155 relate to the human rights provisions applied to the first list of countries that the hon. Member for Winchester (Mr. Oaten) and I discussed. The amendments would return to the provisions in section 11 of the Immigration and Asylum Act 1999 by limiting the deemed safe concept to refugee convention aspects. As I said, the Government amendments split the first group into two. In the new first group, which I believe is the group that he is talking about, it is not the case, if this is the misapprehension, that all the human rights challenges possible would be deemed safe, and therefore not have to go through the certification process that is required by law of the Secretary of State before a non-suspensive appeal mechanism could be applied. It is simply the very limited challenge that someone could make, that removal to the safe third country would be in breach of article 3, because they could not trust that country to exercise its obligations under the ECHR and not move them on to somewhere that was unsafe.

All other possible human rights claims and ECHR challenges, in relation both to any concerns about treatment inside the third country, including any article 3 concerns, and to any claims in relation to the situation of the person in the UK—article 8 on family issues—would have to go through the certification process that applies now under the law, in that the Secretary of State could remove that person only if he was satisfied that the claim, having been refused, was clearly unfounded. It therefore does not change the situation in relation to any other possible ECHR challenges, apart from that very narrow claim that it would be in breach of article 3 because that country might not properly meet its ECHR obligations and not remove the person to somewhere that was not safe. We believe that to be reasonable, because removal to countries on that list would take place within the context of a specific EU legislative framework—Dublin 2—and because claimants in those states will have access to remedies under the ECHR in those states, and also under general EU provisions. In order to get this clear in my head, I set it

out diagrammatically to show the gradations, and I am satisfied with our proposals. I shall not pass this diagram round the Committee, given what happened to the last one. In any case, it is in my own handwriting—I have not even had it typed up. If it would be helpful to have it made into a chart and circulated to the Committee, I should be happy to do that on the record in correspondence.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

It would be enormously appreciated if the Minister were to send the diagram around the Committee in that way. So that I can be clear in my mind, is she arguing that an interpretation of the conventions in Slovenia or the Slovak Republic would be essentially the same as such an interpretation in this country?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

On the limited issue of whether those countries would be likely to act in breach of article 3, for the reasons that I have outlined, any European country removing someone to them under Dublin 2 would then be likely to be in breach of article 3. These are all countries that, under Dublin 2, will have fully to operate the ECHR. On the specific issue, we believe that the Dublin regulations and the EU legislative framework that surrounds them, assure us that we can deem all those countries to be safe. For all other aspects of potential human rights claims, our legislation will require the Secretary of State to certify the cases as clearly unfounded.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I am almost convinced on this, but I shall give a scenario. If this happened, and it turned out that the interpretation was not as the Minister had envisaged in one of those third countries, could that then be grounds for appeal for a future case? An individual could say, ''Look, somebody went there a year ago and there was a completely different interpretation. All the protections we thought would be in place did not happen.'' Could that then be grounds for a future appeal, to demonstrate that the safeguards that we thought were in place in those countries were not, in fact, in place?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

If we had evidence that a country was not operating to the letter of the human rights convention, I think that that would mean that we would consider the provisions of part 2 of schedule 3 and the inclusion of that country on the list. I shall take advice on that, and if I need to correct or embellish my answer, I shall write to the hon. Gentleman. For refugee convention purposes and for the narrow human rights issue, we are deeming all those countries to be safe. If there was evidence that one was not safe for this purpose, we would consider that and amend the legislation. I am grateful for the Committee's patience on this issue: I realise that it is very technical and complicated.

Turning to the question from the hon. Member for Woking about adding countries to the list, amendments to the order-making power will be by affirmative resolution. He also raised the issue of the provisions for that to be bypassed in emergency cases. Government amendment No. 138 removes that, and we can add only by affirmative order. If we—

It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June 2001 and 6 November 2003] and the Orders of the Committee [6 and 13 January 2004], to put forthwith the Question already proposed from the Chair.

Amendment agreed to.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Amendments made: No. 132, in

schedule 3, page 35, line 27, leave out

', because of circumstances of or relating to that State,'.

No. 133, in

schedule 3, page 35, line 29, at end insert

'because of the possibility of removal from that State to another State.'.

No. 134, in

schedule 3, page 35, line 33, at end insert

'; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.'.

No. 135, in

schedule 3, page 35, line 42, leave out sub-sub-paragraph (b) and insert—

'(b) from which a person will not be sent to another State in contravention of his Convention rights,'.

No. 136, in

schedule 3, page 35, line 46, at end insert—

Second List of Safe Countries (Refugee Convention and Human Rights (2))

6A (1) This Part applies to such States as the Secretary of State may by order specify.

(2) An order under this paragraph—

(a) shall be made by statutory instrument, and

(b) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

6B (1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim may be removed—

(a) from the United Kingdom, and

(b) to a State of which he is not a national or citizen.

(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—

(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, and

(b) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.

6C Section 77 of the Nationality, Immigration and Asylum Act 2002 (c.41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed—

(a) from the United Kingdom, and

(b) to a State to which this Part applies;

provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State.

6D (1) This paragraph applies where the Secretary of State certifies that—

(a) it is proposed to remove a person to a State to which this Part applies, and

(b) in the Secretary of State's opinion the person is not a national or citizen of the State.

(2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general).

(3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom's obligations under the Refugee Convention.

(4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim where this paragraph applies unless satisfied that the claim is not clearly unfounded.

6E A person who is outside the United Kingdom may not bring an immigration appeal on any ground that is inconsistent with treating a State to which this Part applies as a place—

(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, and

(b) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.'.

No. 137, in

schedule 3, page 36, line 2, leave out 'SECOND' and insert 'THIRD'.

No. 138, in

schedule 3, page 37, line 39, leave out paragraph 15 and insert—

'15(1) The Secretary of State may by order add a State to the list specified in paragraph 2.

(2) The Secretary of State may by order—

(a) add a State to a list specified under paragraph 6A or 7, or

(b) remove a State from a list specified under paragraph 6A or 7.

16(1) An order under paragraph 15(1) or (2)(a)—

(a) shall be made by statutory instrument,

(b) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and

(c) may include transitional provision.

(2) An order under paragraph 15(2)(b)—

(a) shall be made by statutory instrument,

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament, and

(c) may include transitional provision.'.—[Beverley Hughes.]

Schedule 3, as amended, agreed to.

Clauses 13 and 14 ordered to stand part of the Bill.

Adjourned till this day at half-past Two o'clock.