HC Deb 21 February 1996 vol 272 cc444-9
Miss Widdecombe

I beg to move amendment No. 36, in page 2, line 23, leave out from 'from' to end of line 32 and insert 'the United Kingdom if—

  1. (a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2A) below are fulfilled;
  2. (b) the certificate has not been set aside on an appeal under section 3 below; and
  3. (c) except in the case of a person who is to be sent to a country or territory to which subsection (2B) below applies, the time for giving notice of such an appeal has expired and no such appeal is pending.'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following: Amendment No. 8, in page 2, line 32, after 'Convention', insert 'and (d) that that person has no close family ties or other links (including linguistic, cultural or historical links) which would render it more appropriate for his claim to be considered by the United Kingdom authorities under the terms of the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Community, done at Dublin in 1990.'. Government amendments Nos. 37 and 38.

Amendment No. 11, in clause 3, page 3, leave out lines 4 and 5.

Government amendment No. 39.

Amendment No. 12, in page 3, line 5, at end insert— '(2A) Where an appeal under this section is upheld, the person who made the appeal should be allowed to re-enter the United Kingdom, if he seeks to do so.'. Government amendments Nos. 40 and 41.

Miss Widdecombe

Government amendments Nos. 36 to 41 limit non-suspensive appeals against removal to a third country to cases where the third country is a member of the European Union or is another state designated by order. This fulfils an undertaking given by the Under-Secretary of State, my hon. Friend the Member for Leeds, North-East (Mr. Kirkhope), in Standing Committee.

Clauses 2 and 3 will enable us to achieve the important objective of speeding up removals in third-country cases, and enhancing the effectiveness of our third-country policy. But my hon. Friend informed the Committee on 23 January that we had looked further at the problem of delays in removing asylum seekers to third countries, and had concluded that this part of the Bill could be improved.

In more than 95 per cent. of cases in which asylum is refused on safe third-country grounds, the third country to which the Secretary of State is seeking to remove the applicant is a member state of the EU, such as France or Germany.

Miss Emma Nicholson


Miss Widdecombe


We do not accept that applicants should be able to delay removal by disputing the safety of such countries. We have, however, concluded that there is no need to apply non-suspensive appeals to all third country cases, and we propose to limit them to member states of the European Union in the first instance.

Government amendment No. 37 provides an order-making power that will enable us at a later stage to extend non-suspensive third-country appeals to selected non-EU countries. Those would be countries with proven safe asylum procedures, such as Switzerland, Canada and the United States of America. The Government amendments provide an in-country right of appeal where the third country is not a member of the EU and is not being designated by order as a country to which an applicant can be removed on third-country grounds without a suspensive right of appeal.

I propose to resist amendments Nos. 8, 11 and 12.

In the case of amendment No. 8, it is an accepted principle that the first safe country that an applicant reaches should be the state responsible for considering his asylum claim. Amendment No. 8 would prevent us from removing an asylum seeker to that safe country if he could demonstrate some sort of link with the United Kingdom, whatever that link might be.

Our background paper on third-country removals makes it clear that we operate discretionary policies that specify the circumstances in which an applicant will not be removed on third-country grounds. Those include a family ties concession, but those considerations must remain discretionary. In the great majority of cases, we exercise discretion in the applicant's favour, but it is not hard to imagine circumstances in which it would be appropriate to remove an applicant on third-country grounds even though that applicant had ties with the United Kingdom. A good example would be if the applicant had a criminal record. We believe that it is perfectly proper to return such an asylum seeker to the safe third country.

Amendment No. 8 goes much wider than family ties. It even refers to other links, including linguistic, cultural or historical links. It seems to envisage that we should not remove anyone on third-country grounds if he can so much as speak English.

The amendment also refers to the Dublin convention, but that convention does not contain any provision which states that it would be more appropriate for the United Kingdom to consider an asylum claim if the applicant has historical, linguistic or cultural ties. Article 9 of that convention simply allows for member states to exercise their discretion, as I have explained we do, on humanitarian grounds, in particular on family or cultural grounds, at the request of another member state. The Dublin convention fully recognises that that is properly a matter for discretion.

On amendment No. 11, in cases in which the appeal is non-suspensive, we do not favour allowing it to be lodged while the applicant is still in the United Kingdom. The whole point of non-suspensive appeals is to allow quick removal. If we allowed the application to be initiated while the applicant was still in the United Kingdom, we would risk delays in removal. Appellants would press for time to consult legal advisers or to collate evidence before lodging their appeal.

The approach that we have adopted has the advantage of speed and clarity, and will substantially reduce the scope for challenges and delays. We shall provide in the appeal procedure rules that the time limit for lodging an appeal starts from the time of removal.

The provision to prevent an out-of-country, third-country appeal from being lodged while the applicant is still in the United Kingdom mirrors subsections 13(3) and 16(2) of the Immigration Act 1971, which already provides for appeals from abroad on non-asylum grounds. So there is nothing especially new in our proposal that non-suspensive appeals should be brought only after removal.

We believe that amendment No. 12 is unnecessary, for two reasons. First, we gave a clear undertaking in Committee—which I am happy to repeat—that successful third-country appellants who appealed from abroad would be allowed to return to the United Kingdom. Secondly, it will already be open to the special adjudicator to issue a direction to the Secretary of State under section 19 of the Immigration Act 1971 to readmit a successful appellant.

I commend the Government amendments to the House, and urge withdrawal of, or resistance to, amendment Nos. 8, 11 and 12.

Mr. Henderson

I am mindful that the House wishes to proceed to deal with other matters. Therefore, all I wish to say about amendment No. 8 is that all of us who have been involved for the past two months and more in Committee know that the Dublin convention makes sense. It is sensible to proceed by agreement among European Union countries. Two countries have yet to agree to that convention. Amendment No. 8 recognises that others have still to complete their signatures, but we should proceed on the basis that it is signed. In most instances, reciprocity could be sought on a bilateral level with other countries.

We welcome the Government's change on appeals from third countries where those countries are outside the European Union. Originally, the Government believed that persons should return to those countries to make their appeal, and I am glad that the Government recognise that that was completely impractical and would have guaranteed no fairness or protection for the individuals involved.

If a political asylum procedure is to be fair and perceived as fair, it is very difficult to cover all eventualities, even in the European Union. I have been told of the difficulties of presenting an appeal from countries such as Italy, and in some cases Belgium, because of relationships that they have with other countries and because of their various legal systems.

If we genuinely want to stand up—as Conservative Members have suggested—and say that we are a rich country, that we should be fair, and that we should look sympathetically at applications made by people with a genuine fear of persecution, we should allow appeals to be made even if people come through a third country to this country. That is why I am not prepared to withdraw amendment No. 11.

I heard what the Minister of State said about amendment No. 12, and that may be considered further in another place.

Miss Emma Nicholson

The Minister of State did not give way to me, and it is therefore good of you, Mr. Deputy Speaker, to call me.

This group of amendments will change the legislation in line with Government statements in discussions of clauses 2 and 3 in Committee. We are concerned especially about amendment No. 36, because it would allow asylum seekers to be removed without an in-country right of appeal to member states of the European Union, or to other countries which will be specified in an order laid before Parliament by the Secretary of State. Surely this amendment will leave many people at risk of being repatriated because of the failure of certain European member states to apply effectively the 1951 convention or to ensure that all the officials at their border posts do so.

Amendment No. 36 also leaves open the question, which is even more worrying, which countries might be named in an order and gives more power to the Secretary of State alone. What criteria will be introduced to determine whether a country could correctly be named? We have already commented on the limitations of the negative resolution procedure for debating any such order.

It is, of course, important to put it on the record too that the majority of third-country appeals allowed since the Asylum and Immigration Appeals Act 1993 came into effect have been in relation to European Union countries. So our concerns are real, and we have evidence already.

Surely the adjudicators would not have allowed such appeals if they had not had serious concerns about returning asylum seekers to those European Union countries. We believe that a proper appeal is still needed for those cases. The Refugee Legal Centre was, quite rightly, quoted in Standing Committee D about the 1993 legislation. It stated: The introduction of a right of appeal which could be exercised prior to removal to a third country deemed to be safe was a welcome feature of the Asylum and Immigration Appeals Act 1993. For the first time, there was independent judicial scrutiny of decisions to refuse leave to enter on the grounds that an asylum seeker could be safely returned to a third country."—[Official Report, Standing Committee D, 21 January 1996; c. 235.] In that context I refer especially to amendment No. 8, which includes references to no close family ties or other links (including linguistic, cultural or historical which might hold back the possibility of someone being sent to another country, while his or her case would be more appropriately dealt with in the long term in the United Kingdom.

9 pm

Mistakes can be made, which can be dramatic and sometimes outstanding. By diligent work—the matter was extremely difficult—I recently stopped the deportation of a Dartmoor prisoner, who was under order to be deported to India. Yet he was a British subject. He had been one since birth. His father was similarly a British subject. Why India? He told me that he had no "linguistic, cultural or historical" ties there. I asked him, "Why India?" He replied, "Perhaps because my father was an employee of the Indian air force during his career."

It required vast efforts to get the prisoner's case re-examined—in other words, to stop a British subject being deported to India at the end of his sentence. Another beneficial result of my efforts was that his conviction and sentence were quashed, but that is another matter.

If the Home Secretary can make such a mistake—it is a recorded case—which would lead to deportation for life to India for someone who had no links with that country, surely asylum seekers can expect short shrift if errors are made, and there will be many. My party is opposed to the Government amendment, and supports the Opposition amendments.

Amendment agreed to.

Amendment made: No. 37, in page 2, line 40, at end insert—

'(2A) The conditions are—

  1. (a) that the person is not a national or citizen of the country or territory to which he is to be sent;
  2. (b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and
  3. (c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention.

(2B) This subsection applies to any country or territory which is or forms part of a member State, or is designated for the purposes of this subsection in an order made by the Secretary of State.

(2C) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(2D) For the purposes of this section, an appeal under section 3 below is pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn.'.—[Dr. Liam Fox.]

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