§ (". In the 1971 Act, after section 8A, insert—
§ "Persons excluded from the United Kingdom under international obligations.
§ 8B.—(1) An excluded person must be refused—
- (a) leave to enter the United Kingdom;
- (b) leave to remain in the United Kingdom.
§ (2) A person's leave to enter or remain in the United Kingdom is cancelled on his becoming an excluded person.
§ (3) A person's exemption from the provisions of this Act as a result of section 8(1), (2) or (3) ceases on his becoming an excluded person.
§ (4) "Excluded person" means a person named by or under a designated international instrument.
§ (5) "Designated international instrument" means a resolution of the Security Council of the United Nations or an instrument made by the Council of the European Union which—
- (a) requires or recommends the United Kingdom not to admit to the United Kingdom a person named by or under the resolution or instrument (however that requirement or recommendation is expressed); and
- (b) is designated in an order made by the Secretary of State.
§ (6) Subsections (1) to (3) are subject to such exceptions (if any) as may specified in the order designating the instrument in question.
§ (7) An order under this section must be made by statutory instrument.
§ (8) Such an instrument shall, after it is made, be laid before Parliament without delay." ").757
§ The noble Lord said: My Lords, the effect of the amendment is to insert a new Section 8B into the Immigration Act 1971 to provide that certain people who have been excluded on a European Union or United Nations travel ban can be excluded from the United Kingdom. From time to time, both the UN Security Council and the Council of the European Union introduce travel bans, the purpose of which is to restrict the movement of certain individuals associated with hostile or despotic regimes. This is achieved by requiring members states of the UN or EU respectively to exclude the individuals concerned from their territory or to restrict their access to those territories.
§ As a matter of international law, the United Kingdom is required to recognise all UN and EU travel bans and to refuse persons who are subject to those bans permission to enter its territory. At present, refusal of entry on the basis of a travel ban is effected under paragraph 320 of the Immigration Rules. This is done either by a personal exclusion order signed by the Secretary of State under paragraph 320(6) of the Immigration Rules or by way of a decision by the entry clearance officer or the immigration officer at the port of entry under paragraph 320(19) of the rules.
§ However, in order to determine whether the public good is being served by refusing entry to a certain individual, account has to be taken of all the facts of the case. Under current legislation, to exclude someone simply because he or she were included on an EU or UN travel ban may be an unlawful fetter of both the Secretary of State's and the immigration officers' decision-making powers. Therefore, as currently drafted, paragraph 320 of the Immigration Rules does not provide a vehicle by which the UK can discharge its international obligations under these travel bans. In order to overcome this problem and honour the UK's international obligations, it is necessary to amend the Immigration Act 1971 to provide that persons subject to a UN or EU travel ban can be excluded from the United Kingdom. I beg to move.
§ Lord Avebury
My Lords, we have in fact been excluding people under UN or EU travel bans for a long time. Therefore, what the noble Lord has just told the House is that we have been behaving unlawfully. However, I wish to raise a particular difficulty as regards the amendment as drafted. I shall illustrate my point by referring to the ban, which was imposed on members of the Sierra Leone military junta under Security Council Resolution 1132 of October 1997.
The task of naming people to be included in the ban was delegated to a sanctions committee. The first thing that happened was that the committee, acting at the behest of President Kabbah of Sierra Leone, produced a list which it circulated to member states. We, in turn, notified the Immigration Service that persons named on that list were to be refused entry to the United Kingdom. But the list was not published and it was not until 28th January 1997 that a revised list was produced by the sanctions committee, including all the members of the military junta and their senior associates in the armed forces and in government who were to be excluded from the UK.
758 However, the Foreign Office omitted to notify the immigration and nationality department that the list had changed; indeed, it continued to work on the previous un-published list, which had been circulated by the sanctions committee immediately after SCR 1132 was promulgated. The practical effect of this was that a gentleman, who happens to be a friend of mine, was stopped by an immigration officer when coming into Heathrow in June of this year. He was interrogated over a period of many hours but was subsequently released when the Home Office referred the matter to the Foreign Office and it was discovered that his name was not on the current list. When I protested, I was told that instructions had been given to ensure that this would never happen again and that whenever lists were modified as a result of action by the Security Council, or its agent—in this case, the sanctions committee—such information would immediately be drawn to the attention of the Immigration Service.
The amendment refers to a person "named by" a Security Council resolution or "under" it. I want the Government to assure me that they will not operate on the basis of secret lists issued by a sub-committee or agent of the Security Council and that they will only apply the restrictions in the amendment to persons whose names are properly published either by the Security Council or by any sub-committee which it designates for the purpose. It is fundamentally unjust for a person to have such restrictions applied to him when he does not know that they have been imposed and has no opportunity of objecting if his name appears improperly on the list, as was the case with my friend.
The Government admitted that there was no suggestion that this gentleman had ever been in any way associated with the military junta in Sierra Leone. The only reason for his name appearing on the list was that he was a political opponent of President Kabbah, against whom he displayed extreme malice in a letter which he wrote to the Prime Minister, about which we need not go into detail now. However, it was the subject of previous exchanges in the House and dealt with by the Select Committee when it looked into the subject of Sierra Leone.
I have a further query about the amendment namely, why has the Commonwealth been excluded from the organisations that can ask for members states to be excluded? The Commonwealth habitually does so; for example, in the case of Nigeria. I have before me the communiqué from the Commonwealth Heads of Government meeting held in Edinburgh in October 1997, paragraph 15 of which says:Heads of Government also empowered CMAG"—that is, the Commonwealth Ministerial Action Group—to invoke … Commonwealth-wide implementation of any or all of the measures recommended by CMAG",which included,visa restrictions on members of the Nigerian regime and their families".759 As noble Lords will recall, we did in fact impose those restrictions on the leading members of the military government in Nigeria, and quite properly so. Therefore, why is it that only the EU and the UN are covered under the amendment?
Finally, if the Government think that lists should be published of the persons we would not admit to the UK, why not extend the arrangement to those who, because of their alleged association with organisations deemed to be involved in terrorism, are not to be permitted to enter the United Kingdom? Would that not make the clause more comprehensive? My primary purpose in detaining your Lordships on the matter is to ensure that we do not impose these restrictions on anyone whose name is not published by the organisations dealt with in the amendment.
§ Lord Hylton
My Lords, I express my support for what the noble Lord, Lord Avebury, has just said. Will the Minister give an assurance that all exclusion lists will be published as soon as they are known, or as soon as they begin to come into effect? In that case, people will know where they stand.
§ Lord Alton of Liverpool
My Lords, in supporting my noble friend Lord Hylton and the noble Lord, Lord Avebury, perhaps I may also put a few questions to the Minister about the amendment. I should like to know the specific reasons why it has been necessary to bring forward such an amendment at this stage. Can the Minister tell us whether there have been controversial cases where Her Majesty's Government have not been able to exclude someone with the existing powers when they have been quite reasonably requested to do so by one of the international bodies mentioned or, indeed, any other international body?
It seems to me that this is a potentially draconian power which we are ceding to groups of people about whom we do not know a great deal. For example, who makes up the committee of the Council of the European Union that will be deciding whether or not people will ultimately be allowed to enter the United Kingdom? Why do we need to give this right away instead of making the decision ourselves in the UK?
Further, just for the purposes of today's debate, I wonder whether the Minister can tell the House how many people have actually been involved in this way? For example, can he tell us how many people have been referred to the Home Office during the past 12 months by either of these agencies and how those cases were dealt with?
§ 4 p.m.
§ Lord Cope of Berkeley
My Lords, I was hoping that the Minister would not only give us some of the information that the noble Lord, Lord Alton, seeks but would also perhaps give us some examples of individuals who have been excluded as a result of this process and as a result of resolutions of the Council of the European Union. In giving those examples perhaps he could say which part of the Council of the 760 European Union made the decision, and whether such decisions are made by weighted majority or by unanimity. The Council of Ministers meets in a great variety of forms in the European Union. The expression used in the new clause is,the Council of the European Union".That usually refers to meetings of Prime Ministers, heads of government and heads of state rather than to the ordinary day-to-day meetings of lesser Ministers. However, I am not quite sure whether that would be the legal meaning of the phrase within the Bill.
§ Baroness Williams of Crosby
My Lords, I too wish to pursue the issues contained in this new clause a little further, not least because it is a new clause of a kind in which one would have thought the Select Committee on delegated legislation might be interested as regards a negative procedure on a matter that affects the liberty of movement of a number of people. We may want to obtain a recommendation on that matter from the committee before Third Reading so that we can consider whether such an issue is raised. I follow what the noble Lords, Lord Alton and Lord Cope, have said on another matter too. I take it that the reference to,the Council of the European Union".is a reference to the Council of Ministers, or possibly to the European Council. It is not completely clear which of the two it is.
However, in the light of the Tampere Summit, of which we do not yet have details—I understand that a Statement will be made on that tomorrow when the House of Commons reconvenes—we need to know whether the names of people excluded as a result of the new co-operation that is to be established on matters of criminal justice, and in particular organised crime, could lead to the exclusion of a number of additional people by the Council. Will that point be embraced by the new clause? In other words, we could be contemplating the exclusion of a number of people in terms of co-ordinating the fight against organised crime. We on these Benches fully support that fight, but it is important for us to know just how open-ended this new clause is, and whether it would involve the possibility of people being excluded by the Council without further reference to this House. Thus the lack of an affirmative procedure is much more serious than would be the case if this measure could not be applied to additional numbers of people whom we cannot at present discuss.
§ Lord Bassam of Brighton
My Lords, I thought that this would be a relatively simple amendment but the House has proved me wrong! I congratulate the noble Lord, Lord Avebury, on the way in which he has conducted some difficult negotiations involving his noble friends. I fully acknowledge the seriousness of the matters that he raises.
The example of Sierra Leone that the noble Lord mentioned is unfortunate. That involved an error by the authorities and not a problem with the travel ban system itself. As to the question of secret lists which the noble Lord quite properly mentioned, we must 761 obviously comply with an international obligation. We shall make every effort to ensure that there are no secret lists. As I say, we must comply with those obligations. It seems only right and proper that we do so. We must share our part of the international burden. I am sure that the noble Lord will accept that point.
The noble Lord asked about the Commonwealth. We are generally concerned with United Nations and EU travel bans. We see no need to include Commonwealth bans. We undertake to consult our colleagues in the Foreign and Commonwealth Office on this matter before Third Reading as we think that it is absolutely right to do so. The results of that consultation may more fully answer the point that the noble Lord has raised. To date, colleagues in the Foreign and Commonwealth Office do not believe that we necessarily need to involve the Commonwealth.
§ Lord Avebury
My Lords, how does the noble Lord explain the fact that the Commonwealth, through the Commonwealth Ministerial Action Group, has imposed travel bans, such as the one I mentioned on the members of the Nigerian military junta? Presumably we complied with that ban. As far as I know, we never admitted anyone who belonged to the Nigerian military regime as long as the ban that was imposed by CMAG lasted. Why are we treating the Commonwealth differently from the European Union and the UN?
§ Lord Bassam of Brighton
My Lords, it is difficult to give a precise answer. These matters are dealt with on a case-by-case basis. We shall consult further and return to this matter.
The noble Lord, Lord Alton, asked why we need to deal with this matter now. We take the view that it is for the good of the public. I should have thought that the drafting of the amendment and the explanation I have given have clearly set out the public good. I am happy to try to give the noble Lord more detail as and when we can. Clearly this is a sensitive matter which we view as important. It is very much an important part of our international obligations.
The noble Baroness, Lady Williams—
§ Lord Alton of Liverpool
My Lords, before the Minister leaves that point, for the purposes of debate in the House, I believe that the House is entitled to know whether there has been any example of Her Majesty's Government ever being censured by any international body for admitting someone into this country, or permitting them to travel, in circumstances of which those organisations did not approve.
§ Lord Bassam of Brighton
My Lords, I shall have to write to the noble Lord on that point because I cannot produce immediate facts as I speak. I am, however, quite happy to provide the noble Lord with more detail on the matter.
In response to the point made by the noble Baroness, Lady Williams, we shall withdraw this new clause, as we said we would, to enable the matters 762 within the amendment to be considered fully by the Delegated Powers Scrutiny Committee. I trust that your Lordships will accept what has been said about this new clause in the context of the arguments that we have put forward this afternoon.
§ Lord Cope of Berkeley
My Lords, before the Minister sits down, is this new clause covered by the undertaking given earlier by the noble and learned Lord and, if so, will he not therefore withdraw it?
§ Lord Bassam of Brighton
My Lords, I thought that I had made that point clear; I apologise if I did not. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 7 [Treatment of certain overstayers]:
Lord Bassam of Brighton moved Amendment No. 8:
Page 4, line 42, leave out from beginning to ("overstayers") in line 43 and insert ("During the regularisation period").
§ The noble Lord said: My Lords, Amendments Nos. 8, 9 and 10 put into effect an undertaking given by my noble and learned friend Lord Williams to the noble Lord, Lord Dholakia, to bring forward an amendment requiring Clauses 8 and 59 to come into force together. This would ensure that overstayers could not be removed without an in-country appeal on human rights grounds simply because Clause 8 came into effect before Clause 59 which depends on the Human Rights Act for its force and thus might possibly be delayed. I understand that such an amendment was not strictly necessary because Clause 7 and Clause 164(4) already provide that Clause 8 will come into force on the day after the day prescribed as the end of overstayers' regularisation period.
§ Clause 59 will be brought into force on 2nd October 2000 to coincide with the Human Rights Act. Regulations under Clause 7 would have set the prescribed day as 1st October 2000 and thus Clauses 8 and 59 would have come into force together. 1f there was a delay in the Human Rights Act coming into force, a new end date for the regularisation period could easily be prescribed. As this is not, however, easily apparent from the clauses themselves, we have to recast Clause 7 so that it sets out the interrelation of Clauses 7, 8 and 59 more clearly. I invite your Lordships to agree to these amendments. I beg to move.
My Lords, before the noble Lord sits down I think that it is rather important for him to give us some idea of the extent of Clause 7 and the number of people to whom it will apply. If he could do so, we could then better evaluate these amendments.
§ Lord Phillips of Sudbury
My Lords, the House may remember that at Second Reading there was an extensive debate about the provisions in this clause. We on these Benches are still unhappy with the way things are left.
763 It may help the House to recollect the history of this particular control on those who overstayed when they originally had leave to come here. In the Immigration Act 1971 there was no limitation at all on the right of overstayers to appeal later if they wished to extend their right to remain. The Immigration Act 1988 then restricted that right. The only group that would have a right to apply to remain were those overstayers who had been here at least seven years. If this provision is agreed, that right, too, will be removed. All that that group are left with will be the regularisation period, which currently is to be three months or until the Human Rights Act comes into effect.
Many of the organisations which try to help immigrants and those caught up in the trammels of this complex legislation are unhappy at the way this proposal will work for the following reasons. First, how do the Government propose to adequately publicise this major change in the regulations? In effect, how will they get across to those who will have their rights diminished and removed the fact that they have three months, we anticipate, within which to lodge their application to remain? That is a very serious problem because, by definition, one is dealing only with a finite group of individuals who will have been here already seven years. They will have established themselves in their way of life here and will probably have lost contact with the immigrant organisations.
We suggest to the Government that they should give further consideration to amending the three-month provision. They should do so in one of two ways: either they should greatly extend the period to two, three or four years rather than three months; or they should perhaps bring in a provision such as that in Clause 70(3)(b) of the Bill which deals with the failure of someone to disclose his or her grounds of appeal. In that clause there is the provision that such people will not lose their rights if there is a "reasonable excuse". We suggest to the Government that, at the very least, there should be a reasonable excuse clause for those who are not aware of the three-month provision. Much more, we would prefer to see the three-month period extended. Admittedly, under the clause as drafted, there is a right to extend the period to more than three months, but I am afraid one always suspects that the least will be the fact.
Finally, I should draw to the Government's attention the administrative repercussions of what appears to be in train here. Already there is to be an attempt to meet the two-month target for dealing with applications to come here under the new legislation. If the Government persist, the likelihood is that there will be an additional flood of applications within the three-month period. We see no grounds at all for not amending and liberalising the process. It is not as if one is extending the right to any future group of 764 individuals. I repeat: it is a finite group of individuals with which one is dealing. We urge the Government to think again.
§ Lord Bassam of Brighton
My Lords, the noble Lord, Lord Renton, asked, on the face of it, a very simple question. I wish I could provide a very simple answer. Regrettably, no matter is ever as simple as it first appears. I am unable to give the noble Lord the full response that he would like. The best I can offer is that I shall write to the noble Lord with any of the details we can find on this matter. It is very difficult for our officials to come up with precise figures because there are so many absconds. Therefore the figures are much harder to track than might at first be thought.
The noble Lord, Lord Phillips, asked the Government to give further consideration to the clause. We have given very careful consideration to the amendment we have moved. It reflects an undertaking given to the noble Lord, Lord Dholakia, during the earlier stages of the Bill. We consider that the amendment provides for the circumstances he described.
We hope to introduce a regularisation period in January 2000; the regularisation period will be for eight to nine months. It may offer the noble Lord some comfort that we intend to publicise details of the scheme in the ethnic minority press. We shall also be consulting the voluntary sector. With those important caveats, the amendment should be acceptable to your Lordships. As the noble Lord Phillips said, this is a minimum period. We can extend it; there is flexibility. We have the right to extend it.
This is a practical measure dealing with a difficult and complex situation which we need to regularise and regulate effectively so that this piece of the legislation works well in our interests and in the interests of those who are subject to its provisions.
§ Baroness Williams of Crosby
My Lords, may I ask the Minister to respond to the question posed by my noble friend on the issue of publicity. That is a matter of great importance. I believe my noble friend Lord Dholakia also has a question.
§ Lord Dholakia
My Lords, perhaps I may ask the Minister whether any thought has been given to the number of applications there will be from people appealing against the decision. Bearing in mind that there are some 70,000 to 80,000 people in the queue, the fact that the Home Office will have a new computer, and the utter chaos that exists, how can the Minister say genuinely that there will be a cut-off date within a period of eight or nine months? How can that be done without creating absolute chaos?
§ Lord Bassam of Brighton
My Lords, I hope that all Members of your Lordships' House will support the Government in their genuine and real intention to get to grips with some of the problems that we inherited with the immigration and asylum system. That is what our officials are trying to do. We should give them credit for the way in which they have conducted 765 themselves, particularly in the past few months. Given the influx of cases that they have had to cope with, they are doing extremely well. We have a commitment that should be shared by your Lordships. I invite all sides of your Lordships' House to support us in our endeavours.
As to the point raised by the noble Baroness, Lady Williams, on how we intend to give effect to and publicise the details of the scheme, as I said, we intend to use extensively the ethnic minority press. Given the level of interest in the Bill and these particular clauses, I have little doubt that much attention will be drawn to the matter in the press generally. We shall assist in every possible way we can. We are open to suggestions as to other means that we can use to give publicity to the effects of the amendment.
§ On Question, amendment agreed to.
§ 4.15 p.m.
Lord Bassam of Brighton moved Amendments Nos. 9 and 10:
Page 5, leave out lines 2 and 3 and insert ("begins on the day prescribed for the purposes of this subsection and is not to be less than three months.
( ) The regularisation period ends——
Page 5, line 5, leave out ("the prescribed day") and insert ("that on which the regularisation period ends").
§ On Question, amendments agreed to.
§ Clause 9 [Removal of asylum claimants under standing arrangements with member States]:
Lord Falconer of Thoroton moved Amendment No. 11:
Page 6, leave out lines 3 and 4 and insert ("In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 11 I shall speak also to Amendment No. 12. Amendment No. 11 is an amendment to Clause 9. The purpose of Clause 9 is to prevent unnecessary disputes about the safety of European Union member states as safe third-countries of asylum—disputes which threaten seriously to undermine the asylum process by encouraging abusive claims.
Subsection (2) establishes the conditions in which a certificate can be made by the Secretary of State overriding the normal suspension of removal action pending any appeal. Subsection (1) provides that for these purposes member states, in effect, are to be regarded as safe for asylum-seeking, third, country nationals. However, the wording of Clause 9(1) as it stands presently is unclear because it refers simply to a member state being regarded as safe,
for the purposes of sub-section (2)".
We believe that this should be clarified, and the amendment achieves that.
§ If the amendment is agreed, it will be clear that it is for the purpose of determining whether a person to whom a certificate has been issued may be removed from the United Kingdom, but a member state is to be regarded as safe. I commend Amendment No. 11 to your Lordships.
§ I turn to Amendment No. 12. The House will recall that a similar amendment was tabled in Committee, but was not pressed. In the course of the debate my noble, and now learned, friend Lord Williams of Mostyn—for me he has always been learned— indicated that he would investigate whether there had been any problems concerning the transfer of persons from Northern Ireland to the Republic of Ireland in accordance with the Dublin convention.
§ The proposed amendment concerns persons who, having claimed asylum in the Republic of Ireland, have made their way into Northern Ireland where they have been brought to the attention of the United Kingdom Immigration Service. Such persons may express a wish to be returned to the Republic of Ireland to pursue their asylum claim, but that cannot be done without the agreement of the authorities in Dublin. I must make clear to noble Lords that the agreement of the Irish authorities may not be immediately forthcoming, or indeed forthcoming at all.
§ For example, it may be that the personal details given to one authority do not match the personal details given to the other. En those circumstances, a comparison of photographs will be necessary because the Irish authorities are not empowered to take fingerprints of asylum applicants. Inquiries may reveal that the person concerned is properly the responsibility of the United Kingdom authorities in accordance with the Dublin convention because, for example, they may already have made an unsuccessful application for asylum in this country.
§ The Immigration Office in Belfast exercises the power to detain such persons most sparingly. As of 15th October, there were only two persons detained in Northern Ireland pending transfer to the Republic of Ireland in accordance with the Dublin convention. The decision on whether to detain is taken on a case-by-case basis and is both made and regularly reviewed at a senior level in the light of all the circumstances that pertain at the time, including the progress of the application. Most of those who would be affected by this amendment are not detained, but are granted temporary release or temporary admission. The fact that only a small number of persons may be detained does not mean that we are content for then' to be detained for any longer than is necessary.
§ Following the debate in Committee, officials from the Third Country Unit at the Home Office paid a visit to their counterparts at the Department of Justice, Equality and Law Reform in Dublin between 9th and 10th September of this year. The purpose of their visit was to ensure that lines of communication were clear, and to remove any obstacles that might stand in the way of obtaining the earliest response to transfer requests. Relations between the two authorities have been further improved as a result of that visit. We are 767 confident that this process is now working as fast as is possible consistent with the requirements of the department of justice to establish the identity of those for whom transfer is sought.
§ The amendment proposed would place a duty on the authorities in this country to enter into special arrangements with the authorities in the Republic of Ireland. As I have said, officials of both countries have already met to discuss the matter, and have agreed to give priority to such cases, in particular those few in which detention is considered necessary. Officials in the department of justice in Dublin are co-operating fully to minimise the delay in resolving the issues. Further, I must remind noble Lords that the transfer of some of those affected will be unacceptable to the department of justice and our own Immigration Service, which may have quite proper reasons for seeking to detain such persons. The need for detention must be judged on a case-by-case basis; nor should we be seen to be seeking to constrain the authorities in the Republic of Ireland from reaching their own decisions in their own manner. If passed, I fear that the amendment would have both those effects.
§ I hope that your Lordships will find this explanation helpful and, subject to further debate, will not consider it necessary to press the amendment. I beg to move.
§ On Question, amendment agreed to.
Lord Cope of Berkeley had given notice of his intention to move Amendment No. 12:
Page 6, line 28, at end insert—
("( ) Special arrangements shall be made to facilitate and expedite the return to the Republic of Ireland of any person who, after taking independent legal advice, requests to be returned.").
§ The noble Lord said: My Lords, the Minister's reply seems to me to be very helpful. Clearly he and his officials have been working hard to fulfil the undertaking given by the noble and learned Lord, Lord Williams of Mostyn, on 12th July. I am glad to know that it is expected that the process will work more quickly and smoothly in the future, without alterations to the mechanism.
§ One suggestion was made and repeated in the letter sent to the noble and learned Lord, Lord Falconer, from the Northern Ireland Law Centre on 2nd September. It stated that the Chief Immigration Officer in Belfast should be given authority to make Dublin convention requests direct to Dublin through the department of justice without having to go through the Third Country Unit in Croydon. I believe that within the island of Ireland that might speed up matters and save Croydon some trouble. Croydon has quite enough to do without the extra handling involved in these few but rather special requests. Has that matter been considered?
§ Lord Avebury
My Lords, this morning I spoke to the Northern Ireland Law Centre, and I listened carefully to their arguments, which have already been mentioned by the noble Lord, Lord Cope. I believe that there are powerful reasons for accepting the 768 suggestion, mainly because when the law centre sends cases to the IND in Croydon it takes at least one month for them to come back. No matter how often they visit the Department of Justice, Equality and Law Reform in Dublin—although I welcome the fact that they do have that close liaison—they cannot accelerate the procedures in Croydon. We know of the utter chaos there, and the Third Country Unit should be relieved of the small amount of work entailed in dealing with these cases which, as the noble and learned Lord has explained, are not numerous.
If the cases could be dealt with directly between the Chief Immigration Officer in Belfast and the Department of Justice, Equality and Law Reform in Dublin, that would be much quicker than having to have all the papers sent to the IND in Croydon and then returned to Belfast before any decision is made.
I emphasise that the law centre in Northern Ireland is not suggesting that people should be sent back to Dublin against the wishes of the authorities there, or that we should try to palm off those people who have properly sought asylum in the United Kingdom at an earlier date. All that is suggested here is that an administrative tidying-up should be implemented by avoiding the necessity for Northern Ireland always to have to deal through Croydon. Given that the Government are keen on devolution, I should have thought that this might be acceptable to them.
My Lords, despite what the noble Lord, Lord Avebury, said I should like to emphasise, from personal experience of long ago and more recently, that the Government of the Republic of Ireland have been exceedingly co-operative in helping us to deal with the difficult and delicate matter of controlling immigration.
§ Lord Glentoran
My Lords, I, too, should like to support the noble Lord, Lord Avebury, bearing in mind the conditions in which detainees in Northern Ireland are often held. I shall be interested to hear what the Minister has to say on those conditions later in the debate. However, it would be extremely helpful if a direct line of communication could be set up between Belfast and Dublin, particularly as sometimes—I do not have the figures—some people have become lost and wandered over the Border. They have then been collected up by the authorities in Northern Ireland entirely by accident. That seems funny, but I am not sure whether those involved would agree. However, I think it would be very helpful if this could be done.
§ Lord Falconer of Thoroton
My Lords, the answer is yes, we have considered the question of whether the Chief Immigration Officer in Belfast should be authorised to make Dublin convention requests direct to Dublin. After careful thought we have concluded that he should not, for the reason that if he were given that power without reference to IND, that could potentially lead to inconsistencies in the operation of the Dublin convention.
769 Further, we considered that it was not necessary for that to be done because the Third Country Unit can, when necessary, process requests very quickly, and plainly would do so when there was any issue of detention involved.
§ Lord Avebury
My Lords, before the noble and learned Lord sits down, I agree that under the Dublin convention there can be more than one identified group within each member state. That is a phrase used in a letter from Ms Barbara Roche to the law centre in Northern Ireland. She states,It is an important operational feature that information can only be exchanged between identified groups notified by Member States".Does the Dublin convention require each member state to have only one identified group, or would we be free, if it was thought convenient to do so, to have two identified groups, one in Croydon and one in Belfast?
§ Lord Falconer of Thoroton
My Lords, with the greatest respect to the noble Lord, that does not meet the point that I have just made. There must be consistency in the way that the Government operate their rights under the Dublin convention. To give two people those powers, which may well be lawful under the terms of the convention, does not deal with the point I have made on consistency.
§ [Amendment No. 12 not moved.]
§ 4.30 p.m.
Lord Goodhart moved Amendment No. 13:
Leave out Clause 9.
§ The noble Lord said: My Lords, Amendment No. 13 stands in my name and that of the noble and learned Lord, Lord Ackner. The amendment is of very great importance. We believe that Clause 9 offers a threat to the legitimate rights of asylum seekers and involves a breach of the obligations of the United Kingdom under an international treaty into which it entered nearly 50 years ago.
I should like to start by explaining—I shall do so as briefly as I can—what is the present law, both domestic and international; how that will be changed by Clause 9; and why that is wrong. I start with the Geneva Convention relating to the status of refugees, signed in 1951, which I shall call the refugee convention. Article 1 of that convention defines a refugee as,
any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".
Article 33 of the refugee convention states:
No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".
§ The Dublin convention, of which we have already had some discussion, is a European Union convention, binding on all member states. The convention was 770 signed in 1990 and came into force on 1st September 1997. The ease of crossing the internal borders of the European Union had, as is well known, led to problems because an applicant for asylum, having arrived in one European Union state, might move to another before claiming asylum or, having applied for asylum in one state and been refused, or having become bored with waiting for a decision, might move to another and apply again. We accept that a standard practice was needed to prevent multiple applications and to decide which state had jurisdiction to hear the application for asylum.
§ The Dublin convention lays down rules for deciding those questions and in general provides, under Articles 6 and 7, that it is the state of first entry which hears the application. If, therefore, the applicant lodges an application in another state, the latter can return the applicant to the state of first entry, which is required to consider the application. However, the United Kingdom, like other member states, is not obliged to return an applicant to the state of first entry; nor does the Dublin convention in any way alter the terms of the refugee convention. We in the United Kingdom should not therefore return an applicant to a state where rights under the refugee convention are not properly applied.
§ I turn now to the United Kingdom legislation. I shall refer only to Section 2 of the Asylum and Immigration Act 1996. That allows the Home Secretary to deport an applicant to certain states, including European Union states, if he is satisfied that three conditions are fulfilled: first, that the applicant is not a national of the state to which he is to be sent; secondly, that his or her life or liberty would not be threatened in that state; and, thirdly, that the government of that state would not send him or her on to another state otherwise than in accordance with the refugee convention.
§ The effect of Section 2 of the 1996 Act has been decided by a recent decision of the Court of Appeal—known as the Adan case. That was decided on 23rd July—after, that is, the debate on Clause 9 at the Committee stage of the Bill in your Lordships' House. The problem in that case arose because France and Germany interpret the refugee convention in a way which is different from the way in which the United Kingdom and, I believe, most other member states of the European Union interpret it. France and Germany say that an applicant can be treated as a refugee only if the persecution which he or she fears is persecution by the state authorities or is condoned by them. The United Kingdom and others interpret the convention as applying also where the state is unable to prevent persecution by non-state parties.
§ Of the three different cases that were heard concurrently by the Court of Appeal, two had come through Germany and one through France as countries of first entry. One case was that of a Somali woman who claimed a fear of persecution from a rival tribal group in a state whose authority had completely collapsed and where there was, in effect, no government whatever. The second applicant was a Tamil man from Sri Lanka who had been living in a 771 part of Sri Lanka controlled by the Tamil Tigers, not by the government, and who claimed fear of persecution by the Tigers. The third case was that of an Algerian man who claimed fear of persecution by Islamic terrorists from which the government in Algeria were unable to protect him. In each of those cases the French and German Governments would have refused asylum because they were not cases of persecution by, or with the complicity of, the lawful government of those territories.
§ The Home Secretary originally decided to return the applicants to France or Germany, although in fact he had changed his mind before the Court of Appeal decision was given. Nevertheless, the Court of Appeal decided the case and the original decision was quashed by it on an application for judicial review. It was held that the Home Secretary was not justified in law in sending the applicants back because the Home Secretary could not have been satisfied that the third condition for return was satisfied; that is, that France or Germany would not return applicants to their home states in breach of the refugee convention as interpreted by the English courts. That decision of the Court of Appeal accords with justice and with common sense. What I am saying is not intended in any way as a general attack on the judicial systems of France or Germany. There is no objection to the way in which they interpret the refugee convention in cases of persecution by state governments; still less am I intending to say that there is any fundamental weakness in their judicial systems.
§ That being the present law, perhaps I may turn to the effect of the Bill. Clause 9 states that if the Home Secretary wishes to deport an applicant to another European Union state, which is the state of first entry, that state is to be regarded as a place from which that person will not be sent to another country otherwise than in accordance with the refugee convention. The Home Secretary has to certify that the other state has accepted that it is a responsible state under the Dublin convention, but he does not have to certify that the government of that country would not return the applicant to the country from which the applicant has fled. In other words, the courts must assume that the French and German authorities would not return the applicant to the country of origin in breach of the refugee convention, irrespective of whether or not that assumption is correct.
§ Clause 9 does provide a limited safeguard. It permits a right of appeal, under Clause 59 of the Bill, on the ground that the decision to return the applicant to the country of first entry is a breach of the applicant's rights under the Human Rights Act. The Government may say that that is adequate protection. That is not the case. The European Convention on Human Rights, incorporated under the Human Rights Act, is very weak on asylum rights. The right of asylum is not itself a convention right; nor is there any general protection against discrimination in the convention; and—I say in passing—there will not be any such general protection against discrimination as long as 772 the United Kingdom Government maintain their opposition to the draft 12th protocol to the convention which, if adopted, would create a free-standing right not to be discriminated against.
§ The only relevant right which is clearly protected by the European Convention on Human Rights is the right to life. Clause 59 may, therefore, protect an applicant where his or her return would cause a serious risk of death. But the refugee convention is not limited to cases where there is a threat to life. In addition, the refugee convention gives refugees many substantive rights in the country of refuge which would not be available under the European convention.
§ In short, the position is that applicants for asylum in the United Kingdom presently have rights under both the refugee convention and the European Convention on Human Rights. Both treaties are accepted by the United Kingdom. If Clause 9 is enacted, applicants who have arrived via another European Union country will have no rights under the refugee convention. That will be so, even if the country of first entry interprets the refugee convention in a way that is rejected by our courts.
§ Unofficial reports from the Tampere conference suggest that it is proposed, in cases of non-state persecution, to lower the standards to those of France and Germany rather than raise them to those of the United Kingdom. We on these Benches would accept a reference to the European Court of Justice to determine the interpretation of the refugee convention in the European Union states. However, we cannot accept a political decision of the European Union governments to reduce the standards provided by the refugee convention. We believe that the provision in Clause 9 is in plain breach of our obligations under the refugee convention. We do not propose to press this amendment today because the decisions taken at Tampere are likely to be highly relevant and we shall not know what they are at least until a statement is made tomorrow. Unless the Tampere decisions are much more helpful than we expect, we shall return vigorously to the issue at Third Reading. I beg to move.
§ Lord Phillips of Sudbury
My Lords, I merely want to add two points to the persuasive argument made my noble friend Lord Goodhart. In a letter to my noble friend Lady Williams of Crosby on 24th September, the Home Secretary summarised what might be described as the political case to justify Clause 9. He wrote:We would not be asking Parliament to agree that other Member States should be trusted to deal properly with the asylum seekers for whom they are responsible under international law, unless we were confident that there was no risk in practice of those people being returned to face persecution".He later referred to those who doubt the wisdom of Clause 9 as representing some,challenge to the good faith of other EU member states".It is not a challenge to the good faith of another EU member state, any more than it indicates any lack of trust in another member state, for us to allow our courts to deal with asylum seekers here under the 773 circumstances prescribed by this legislation. If democracy under the law means anything, surely it means democracy under the supervision of the courts. This law relates to asylum seekers in this country who will be seeking rights under the provisions of this Bill.
Perhaps I may refer to another section of the Home Secretary's letter in which he stated:As to who should have the final say in matters like this, we live in an elected Parliamentary democracy, with Parliament the ultimate law maker".Absolutely. But we also live in a democracy where the courts prescribe what Parliament does in terms of its own legislation, and where the rights bestowed on the courts by Parliament, far from representing a lack of trust or good faith in those institutions, is the highest flowering of our democratic way. Clause 9 engages deep principles which the House would be well advised to consider very seriously. I hope that the Government will reconsider the wisdom of Clause 9.
§ 4.45 p.m.
§ Baroness Williams of Crosby
My Lords, perhaps I may intervene briefly. In my letter to the Home Secretary on 5th August, I specifically mentioned the problems that might arise under Clause 9—not least because of the discussions that were due to take place with the rest of the European Union. I simply want to underline the point made by my noble friend Lord Goodhart. We have had the rather sudden introduction of the Tampere Summit. I fully appreciate that, in August, no one could have known what decisions might or might not be reached at the summit. However, it looks as though it will have a profound effect on Clause 9. Therefore, we felt it appropriate to ask for a further delay before pressing the matter, as we are likely to know more about the decisions reached between heads of state at the summit within the next few days. Those decisions are likely to have an intimate and powerful effect on the whole standing of asylum seekers in this country in line with other EU countries. At present, we cart only speculate as to the basis on which the summit decisions have been made. For those reasons, we wish to give a clear indication that, while we shall not seek the view of the House now, we intend to return to the matter at Third Reading—not in order to cause difficulty for the Government, but simply because we do not presently have adequate information to be able to raise some of the issues that we wish to raise about the decisions reached at the summit.
§ Lord Ackner
My Lords, following the excellent exposition by the noble Lord, Lord Goodhart, I feel some frustration that we shall not be dividing the House. The principle that citizens of this country should be entitled to take advantage of the decisions of the Court of Appeal and not have those decisions blocked or obliterated by policy decisions of a political nature is immensely important. I am delighted that we shall return to the charge next time round.
§ Lord Cope of Berkeley
My Lords, I do not want to add to what has already been said. I merely want to ask 774 a question. Are France and Germany to be regarded under the clause as member states? Clause 9(l)(b) states that a member state is,a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention".As I understand it, the interpretation of the refugee convention by the British Court of Appeal being different from that in France, Germany and some other countries, it could not be argued that someone being sent to France, for example, was being sent to a country from where he or she might not be sent somewhere else under the refugee convention. Under our interpretation of the refugee convention, such people could be sent to another country. It therefore seems to me that, if the UK definition of the refugee convention, as settled by our courts, is to govern this legislation—I take that to be the case as it will be British law—France and Germany cannot be regarded for this purpose as member states.
§ Lord Falconer of Thoroton
My Lords, the Government have repeatedly and emphatically made clear their determination that they should meet their obligations to those who are genuinely in need of protection from prosecution and torture. We have to face up to the undeniable fact that the system of international protection for such people is under threat—not from anything that this Government or fellow members of the European Union are doing, but from cynical, opportunistic abuse of the asylum system by people who have no motive other than racketeering and money-making, and whose other activities involve organised crime of all kinds. If we do not respond effectively to the systematic abuse of the asylum system, however well intentioned our motives are, the genuine asylum seekers will become lost in a system that will be completely overloaded.
The purpose of the Bill and of the Government's whole wider strategy is to deal firmly with abuse without in any way taking away protection from those who really need it. We must tackle the abuse robustly, if protection is not to be undermined. Perhaps up to half of all asylum seekers in the United Kingdom have at some point been in another European Union member state. I give an example. Of the 4,445 who claimed asylum at Dover and the 2,843 who claimed asylum at Waterloo in the first eight months of this year alone, every single one must have come from another member state. The problem is, therefore, one which we share with our European Union partners. It is vital that we share the solution with them too.
At the special European Council at Tampere just two days ago, all member states agreed to work more closely together on asylum and immigration in support of protection against the abuse that undermines the whole system. The Dublin convention is a crucial part of a European-wide response to the problems. An asylum applicant in the European Union should have his or her case considered by one member state—and one member state only. Unless we can ensure that that happens, unfounded applications throughout the European Union will continue to spiral, as would-be migrants see the opportunity to move from one 775 country to another, decide where they have the best chance and, in many cases, make successive claims, exploiting just the kind of differences in interpretation of the law to which the noble Lord, Lord Goodhart, referred.
Because of its geographical location, the United Kingdom is frequently the end of the line for such applicants. But let us be clear: this is not a question of the United Kingdom seeking selfishly to reduce its own numbers of asylum seekers at the expense of other member states. The point is that an effective Dublin convention will benefit all member states, because its deterrent effect will reduce the numbers of unfounded applicants circulating throughout the European Union.
Clause 9 is essential if the United Kingdom is to play its full part in the arrangements and gain full advantage from them. In the past 12 months nearly one-third of cases in the United Kingdom certified for removal to other member states have become entangled in disputes and litigation, often protracted and on the basis of differences between member states' approach to the 1951 convention. That is a perfect background for racketeers to operate in, resulting in typical abuse of the legal system.
Other member states do not report similar obstacles to making the agreement work. Let us consider, for example, the question of non-state persecution, to which the noble Lord, Lord Goodhart, referred. Denmark and Belgium, like the United Kingdom, take a different view from France or Germany in relation to the interpretation of the refugee convention; yet neither Denmark nor Belgium has any difficulty, as a result of the difference, in transferring applicants under the Dublin convention, and both regularly do so.
Clause 9, as drafted, therefore proposes that other member states should be regarded as safe third countries of asylum. That has been challenged by the noble Lord, Lord Goodhart, in a persuasive but incomplete speech, on the basis that in a recent case the Court of Appeal held France and Germany's interpretations of one point in the 1951 convention to be different from that of the United Kingdom.
Before I turn to that, perhaps I may deal with the point made by the noble and learned Lord, Lord Ackner. He said that the Court of Appeal's decision should not be overturned on policy grounds. It is broadly accepted that, wonderful though the Court of Appeal is, it is subject to the sovereignty of Parliament in a number of respects. Although noble and learned lawyers might think that they should be the final determiners of such things, it is widely accepted that Parliament should be the determiner of those matters.
§ Lord Ackner
My Lords, I do not believe that anything I said in any way criticises that well established and well accepted point. But if you are 776 going to deprive the citizen of the advantages of the decision of the Court of Appeal, you must do it in the proper way, not like this.
§ Lord Falconer of Thoroton
My Lords, I would not put it on the basis of depriving the citizen of the benefit of the Court of Appeal's decision. I put it on the basis that in so far as it is a matter where Parliament disagrees with the conclusion of the Court of Appeal, it does so on the basis of legislation which comes to a different conclusion.
The question of whether other member states can be regarded as safe third countries of asylum is properly one which Parliament may address in legislation. All member states are highly advanced democracies with independent courts and distinguished judges and advocates. Their vigilance in applying international law to the highest standard is surely a matter on which they can be expected to show a mutual trust. There is no international court dedicated to interpreting the 1951 convention and it is inevitable that national courts will develop case law in some respects differently or will arrive at similar conclusions but at different times. With asylum law being such an active and developing field, it would be astonishing if there were complete uniformity between all member states.
However, despite all that, the noble Lord, Lord Goodhart, argues that France and Germany cannot be regarded as safe third asylum countries because of the conclusion of the Court of Appeal in the cases to which he referred. That decision is subject to appeal to my right honourable friend the Secretary of State. However, I do not invite your Lordships to anticipate the outcome of that appeal, nor to hear the arguments that will be put forward on my right honourable friend's behalf, because this is not a court of law.
Instead, I suggest that we address the fundamental question: in the light of the rulings in France and Germany, do we regard those countries as fundamentally safe, in that they will not return to other countries people who are in genuine need of protection? That is the question, not what is the effect of differences in the law. That is just what the racketeers wish to take advantage of.
To answer the fundamental question, we need to consider the full range of measures of protection available in member states. The Court of Appeal's judgment was focused on the question of interpretation. In doing so, the court was examining the cases in the framework of the legislation set by Parliament in the Asylum and Immigration Act 1996. As we had agreed in court to consider the cases substantively, the Court of Appeal at no stage addressed the actual risk of the three individuals involved being returned to their countries of origin. The noble Lord, Lord Goodhart, nods. The court was 777 not addressing the issue of whether they would be returned; it simply addressed the question: what did the refugee convention mean?
Like the United Kingdom and other member states, both France and Germany operate other forms of protection outside the 1951 convention. Both countries have provisions in their statute law which expressly deal with such alternative forms of protection. Both countries, as well as all other member states, are signatories to the European Convention on Human Rights. That convention has a supranational court overseeing its interpretation. Moreover, Article 3 of the convention focuses squarely on protection against inhuman or degrading treatment. The court at Strasbourg has found that to be an absolute protection. In that respect, the ECHR goes even further than the 1951 refugee convention.
I would not ask your Lordships to agree that other member states should be trusted to deal properly with the asylum seekers for whom they are responsible under international law unless we were confident, as a Government, that there was no risk in practice of those people being returned to face persecution.
Clause 9 is a bold provision, but it is entirely consistent with our international obligations. We face a clear choice. We can let Clause 9 stand part of the Bill and he ready to play our full part with our partners in the European Union in tackling the insidious abuse of asylum processes which undermines the protection of those genuinely in need; alternatively, as the noble Lord, Lord Goodhart, supported by the noble and learned Lord, Lord Ackner, proposes, we can vote to exclude the clause from the Bill and allow differences in the boundary line which member states draw between one form of protection and another to frustrate the operation of the Dublin convention. That would be to the benefit of no one except the abusers of the system and those who profit by exploiting them. I urge your Lordships to prefer the first option and to reject the amendment.
§ Lord Goodhart
My Lords, I do not dispute that there is abuse of the right of asylum, but that argument must not be used to prevent people who have a justifiable case from putting it forward. Non-state groups can, and plainly do, commit acts of persecution. France and Germany do not recognise that kind of persecution as coming within the refugee convention; the United Kingdom does, in my view rightly. It follows inevitably from those propositions that if the UK authorities return an applicant who complains of non-state persecution to a state which does not recognise that as coming within the convention, they are being required to act in a way that is contrary to their obligations under the refugee convention as interpreted by the Court of Appeal. While that is clear, and for reasons which my noble friend Lady Williams and I explained earlier we do not intend to divide the House on this occasion, it is certainly something to which we shall return on Third Reading. I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.778
§ 5 p.m.
The Attorney-General (Lord Williams of Mostyn) moved Amendment No. 14:
After Clause 11, insert the following new clause—