Joint Committee On Human Rights Twenty-Third Report


B. Human Rights Implications of Amendments relating to Parts 3, 5 and 8 of the Bill

6. Part 3 of the Bill[15] is concerned with support and assistance for asylum-seekers outside the accommodation centres which would be established under Part 2. Two of the new clauses added on re-commitment, which aim to give effect to the second of the aims announced by the Home Secretary (see paragraph 1, above), would give rise to human rights issues.

Late claim for asylum: refusal of support (clauses 54 and 55)

7. Clause 54 of the Bill, inserted by a Government amendment on re-commitment, would forbid the Secretary of State to provide, or arrange for the provision of, certain kinds of support in specified circumstances to a person claiming asylum. The new clause would apply where 'the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.'[16] The kinds of support which could not be provided would be—

—  accommodation for people granted temporary admission to the UK or released from detention under paragraph 21 of Schedule 2 to the Immigration Act 1971, or released on bail under any provision of the 1971 Act,[17]

—  support for asylum-seekers or failed asylum-seekers who are destitute, or appear to be likely to become destitute within a prescribed period, and are unable to provide for their own adequate accommodation or food or other essential items,[18]

—  temporary support for destitute asylum-seekers pending a decision about the provision of more long-term support,[19] and

—  accommodation and other support in an accommodation centre established under Part 2 of the Bill.[20]

In addition, it would no longer be possible for a local authority or a Northern Ireland authority to provide support for such people by way of accommodation or promotion of their well-being.[21] It would still be possible in a few cases for support to be provided under the National Assistance Act 1948, but, for reasons explained in paragraph 14 below, authorities do not generally have duties towards asylum-seekers unless they suffer from infirmities: section 21(1A) of the 1948 Act excludes able-bodied but destitute asylum-seekers from the scope of the duties under the Act.

8. By virtue of clause 54(5), the new clause would not prevent the provision of support to children, so it should be possible to meet the requirements of the Convention on the Rights of the Child. Nor would it prevent the Secretary of State from providing support to the extent necessary to avoid a breach of a person's Convention rights within the meaning of the Human Rights Act 1998. Those rights require the provision of support to people who would otherwise be at risk of suffering such destitution as to subject them to inhuman or degrading treatment (ECHR Article 3), and in certain circumstances would require support to preserve private and family life (ECHR Article 8). The Secretary of State has a duty, not merely a power, under section 6 of the Human Rights Act 1998 to avoid any violation of a Convention right. We find it difficult to envisage a case where a person could be destitute (as that word is defined in clause 43(6) of the Bill) without giving rise to a threat of a violation of Articles 3 and/or 8 of the ECHR. In addition, we are concerned that the power to support children independently of adults might lead to the separation of children from members of their family, leading to a risk of a further violation of Article 8.

9. The new clause as currently drafted would leave two further human rights problems to be addressed.

—  Adult asylum-seekers have other human rights which are in play, particularly Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESC), which the United Kingdom is under an obligation to respect under international law (but not under national law). This matter is examined in paragraphs 10-15, below.

—  Aspects of drafting of the new clause would seem to prevent it from providing adequate safeguards against violations of human rights, whether those of children under the CRC, those of anyone under the ECHR, or those of adults under the ICESC. This is considered in paragraphs 16-20, below.

The ICESC

10. Article 11(1) of the ICESC provides, so far as relevant:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing ...

11. Clause 54 would not allow the Secretary of State to provide support in order to avoid the threat of a violation of Article 11(1). On re-commitment, this was clearly stated by Lord Filkin in response to a question by Lord Campbell of Alloway, a member of this Committee.[22] In our Seventeenth Report at paragraph 65, we noted that, if an asylum-seeker were reduced to circumstances in which he or she would lack adequate housing through no fault of his or her own, it could lead to a violation of Article 11(1). The same applies to a situation in which an asylum-seeker was unable to provide for other needs through no fault of his or her own.

12. In the past, the Government has argued that there would be no violation of Article 11(1) unless the circumstances were such as to inflict inhuman or degrading treatment on the asylum-seeker, thus violating ECHR Article 3. In our Seventeenth Report, at paragraph 66, we rejected the argument for the following reasons:

The right to adequate housing under ICESC Article 11(1) cannot properly be read as requiring merely that people should not be so badly housed that it amounts to degrading treatment, unless one greatly expands the meaning of degrading treatment. Not only must accommodation not be degrading, but it must be adequate for the needs of those who have to reside in it.

The same is true in relation to adequate food and clothing. In saying this, we recognise that there are many citizens of the UK who do not enjoy housing adequate to their needs. We do not seek to suggest that asylum seekers should be privileged in their treatment by public authorities in comparison to such people, only that it would be potentially incompatible with the UK's obligations under the ECHR or the ICESC to discriminate either in law or practice between the treatment of asylum seekers and the treatment of others by public authorities in relation to such rights.

13. It is possible that some support might be available from local authorities for certain people in urgent need, in the form of help with accommodation and other needs, under the National Assistance Act 1948. We examined this in our First Report on the Homelessness Bill.[23] We accepted that such support might be available on the basis of the Court of Appeal's interpretation of section 21(1A) of the 1948 Act in O. v. Wandsworth London Borough Council; Bhikha v. Leicester City Council.[24] However, we noted that the Government had been unable to give a categorical assurance that assistance would be available to all those who would otherwise be left wholly destitute. We were accordingly not satisfied that the 1948 Act provided a reliable assurance against homelessness and destitution amounting to inhuman or degrading treatment for immigrants who were unable to leave the country but were not entitled to enter.

14. Our concern has been reinforced by a very recent decision of the Appellate Committee of the House of Lords which appears to establish that section 21(1A) of the 1948 Act imposes a duty on local authorities to give assistance with accommodation (and other assistance) for asylum-seekers only if they suffer from an infirmity which requires the local social services department to provide them with care and attention. No such obligation arises in respect of able-bodied but destitute asylum-seekers.[25] It therefore seems clear that the 1948 Act cannot be regarded as offering reliable protection against inadequate housing, food or clothing which would be incompatible with the United Kingdom's obligations under Article 11(1) of the ICESC but does not amount to inhuman or degrading treatment.

15. We conclude that there is a significant risk that the new clause could lead to a violation of Article 11(1) of the International Covenant on Economic, Social and Cultural Rights in cases where the circumstances did not amount to a violation of one of the Convention rights as defined in the Human Rights Act 1998. However, as noted in paragraph 8, above, it is difficult to envisage a case where a person could be destitute without there being a threat of a violation of Articles 3 and/or 8 of the ECHR. We reiterate that the Secretary of State has a duty under section 6 of the Human Rights Act 1998 to avoid that risk. We draw this to the attention of each House.

Weakness in safeguards for human rights generally under clause 54

16. Three aspects of the clause 54 make it hard to be confident that it would provide adequate protection for any of the human rights of those affected by it.

17. First, the test of making a claim 'as soon as reasonably practicable' seems unacceptably imprecise and lacking in objectivity to determine whether or not someone should be eligible for support necessary to respect his or her human rights.[26] In the debate on re-commitment in the Lords, Lord Filkin said that guidance would be published, and suggested that people would have an opportunity to obtain advice (for example, at an induction centre).[27] However, many people would not be in an induction centre at an early stage. Peers also drew attention to the fact that many people who arrive in the United Kingdom do not realise that they are required to apply for asylum,[28] and Lord Filkin for the Government accepted that trauma resulting from torture, inhuman or degrading treatment, or perhaps the threat of such treatment in a person's country of origin should justify a delay in applying for asylum.[29] Lord Filkin also said that, if people are delayed in claiming asylum and support, 'it will be open to them to provide full and complete information explaining why. If that explanation is credible, we shall accept it.'[30] However, clause 54 would actually impose an obligation to satisfy the Secretary of State, not merely to provide a credible explanation. In our view, there is a need for the express terms of the legislation to reflect the understanding approach which Lord Filkin said would be taken to those who claim to have been the victims of persecution. Rather than place the burden on them to satisfy the Secretary of State that they claimed asylum as soon as reasonably practicable, it would be preferable to require the Secretary of State to establish that there had been undue delay in making a claim, having regard to the circumstances facing the applicants. We consider that clause 54 should be amended by providing that support would be withheld only if the Secretary of State could establish that there had been unreasonable and undue delay in the making of the claim for asylum in the circumstances of the claimant's case.

18. Secondly, the claimant would not be allowed to appeal to an adjudicator against the decision that he or she was ineligible for support under the new clause.[31] It would be possible to apply for judicial review, but that might not provide an effective remedy, because—

    (a)  it would probably not be possible to argue that the withdrawal of support was irrational, and it could certainly not be argued that it was illegal or unfair, merely because it gave rise to a violation of an international human right other than a Convention right within the meaning of the Human Rights Act 1998, and

    (b)  there would be no power to provide support pending the outcome of the application for judicial review.

19. Thirdly, clause 54(1)(b) would place on every claimant the burden of satisfying the Secretary of State that the claim for asylum was made as soon as possible after the claimant had arrived in the United Kingdom. In effect, this creates a rebuttable presumption that people claiming asylum have not made their claim as soon as reasonably practicable, and that accordingly claimants are not entitled to be supported. There is no empirical basis for presuming this, particularly when it may result in a destitute asylum-seeker losing any entitlement to support. As this could lead to a violation of human rights in the circumstances outlined above, it would be more appropriate to place the burden on the Secretary of State to establish that conditions for withholding support, compatible with human rights standards, had been met.

20. We draw these concerns to the attention of each House.

Application for support: false or incomplete information (clause 56)

21. Clause 56, inserted as a result of a Government amendment on re-commitment, would amend paragraph 12(c) of Schedule 8 to the Immigration and Asylum Act 1999. That Schedule deals with the power of the Secretary of State to make regulations supplementing section 95 of that Act (provision of support to asylum-seekers and their dependants).[32]

22. Paragraph 12 currently provides:

The regulations may make provision with respect to procedural requirements including, in particular, provision as to—

    (a)  the procedure to be followed in making an application for support;

    (b)  the information which must be provided by the applicant;

    (c)  the circumstances in which an application may not be entertained;

    (d)  the making of further enquiries by the Secretary of State;

    (e)  the circumstances in which, and person by whom, a change of circumstances of a prescribed description must be notified to the Secretary of State.

Clause 56 would result in sub-paragraph (c) reading: 'the circumstances in which an application may not be entertained (which may, in particular, provide for an application not to be entertained where the Secretary of State is not satisfied that the information provided is complete or accurate or that the applicant is co-operating with enquiries under paragraph (d))'. This seems to be intended to give further effect to the second objective set out in paragraph 1 above, by allowing the Secretary of State to deny support to those who do not provide a 'truthful and credible account as to their circumstances and route of entry and method of arrival in the UK.'[33]

23. In fact, we doubt whether clause 56 could have that effect as a matter of law. The power to make regulations under Schedule 8 to the 1999 Act is directed to regulating the provision of support to asylum-seekers: the Schedule is concerned with determining whether a person is destitute (paragraph 2), prescribing levels of support (paragraph 3), providing for the items or services which are to be made available to people who receive support (paragraph 4), taking account of income or assets, and valuing assets, which are available to the claimant, and requiring the claimant to make a contribution to the cost of providing support (paragraphs 5, 6, 10 and 11), taking account of a previous breach of any condition attached to the earlier provision of support (paragraph 7), and suspending or discontinuing support (paragraph 8 and 9). In the context of the Schedule, it seems likely to us that regulations concerning further enquiries to be made by the Secretary of State (paragraph 12(d)) would have to be directed to enquiries connected with the matters set out in paragraphs 2 to 11. They must be related to the provision of support.

24. Discovering how the person entered the United Kingdom may be relevant when deciding whether he or she has such a well-founded fear of persecution as to be entitled to asylum, but Schedule 8 is not concerned with that matter. As noted earlier, the powers under Schedule 8 are given to help to decide whether a person is in need of support, and, if so, what contribution (if any) the person should make to his or her own support. The way in which a claimant entered the country does not appear to be a matter relating to the claimant's need for support, or the claimant's means; it seems to be concerned instead with a criminal investigation into the conduct of the claimant (in which case the claimant ought to be able to avail himself or herself of the privilege against self-incrimination which forms an integral part of the right to a fair hearing in the determination of a criminal charge, under ECHR Article 6(1)) or of the people who brought him or her into the country. We accept that there may be good reasons for requiring a person to provide information which would allow traffickers to be identified and prosecuted for bringing people into the United Kingdom. However, if that is desired, there should be a specific provision imposing the obligation, with appropriate statutory protection against the use of any information in criminal proceedings against the person disclosing it. It would not be appropriate, and probably would not be effective as a matter of law, to try to impose such an obligation by threatening to make a destitute asylum-seeker ineligible for asylum.

25. That being so, we consider it to be at least possible that any attempt to use paragraph 12 to withhold support from a person because they have not provided information unrelated to their personal circumstances would be unlawful: it would amount to the use of a power for an extraneous or improper purpose. In any case, where human rights are at stake the principle of legal certainty requires that such doubts should be avoided.

26. If, contrary to our view, clause 56 is capable of having the effect envisaged by the Home Secretary, regulations which purported to authorise withholding of support in circumstances where it would lead to a violation of the right to be free of inhuman or degrading treatment (ECHR Article 3) or the right to respect for private and family life (ECHR Article 8) would be ultra vires and unlawful by virtue of sections 3 and 6 of the Human Rights Act 1998, if the regulations could not be read and given effect in a manner compatible with those rights. However, as we noted in paragraph 8, above, we find it hard to envisage circumstances in which a person could be destitute within the meaning of the Bill yet not suffer a violation of rights under ECHR Articles 3 and/or 8.

27. On the other hand, clause 56 would give rise to a number of other human rights issues. By contrast with clause 54 (considered in paragraphs 7-20, above), clause 56 would not allow the Secretary of State to authorise, by regulations, refusal of support to children. The regulations to be made by the Secretary of State might offer adequate protection to children's rights, but would not be required to do so. They might, therefore, violate rights of children under the Convention on the Rights of the Child (CRC), particularly the state's obligation to make the best interests of the child a primary consideration in all actions concerning children (CRC Article 3(1)), the right not to be separated from parents except where that would be in the best interests of the child (CRC Article 9(1). CRC Article 22 provides—

    1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties ...

The United Kingdom has entered very wide reservations to the CRC, including Article 22, purporting to exclude its benefits from people who are subject to immigration control. These reservations (particularly that in respect of CRC Article 22) have recently been criticised in discussion in the Committee on the Rights of the Child, the monitoring body for the CRC.[34] In paragraph 17 of our Seventeenth Report, we gave reasons for considering that the reservations were invalid as being incompatible with the object and purposes of the CRC. But even if (as we believe) the reservations are invalid it would not be possible to argue in a court or tribunal in the United Kingdom that the regulations (or any action taken pursuant to them) were unlawful merely by reason of a violation of rights under the CRC, since these rights do not form part of national law, and it would probably not be regarded as irrational (in the sense in which the word is used in judicial review proceedings) for the Government to refuse to give effect to an international treaty obligation. We draw the attention of each House to the resulting threat to rights under the CRC and the weakness of safeguards for the rights under this amendment.

28. Furthermore, clause 56 would not protect the right of adults or children to adequate standards of housing, food and clothing under ICESC Article 11(1). This issue has already been considered, as it affects adults, in relation to clause 54 (paragraphs 10-15, above). The same considerations apply here. Again, there would be no statutory requirement for any regulations to be compatible with the rights under ICESC; they do not form part of national law. For this reason, it could probably not be successfully argued that regulations or actions incompatible with those rights were irrational for the purposes of judicial review proceedings.

29. Finally, the drafting of clause 56 places on the applicant the burden of satisfying the Secretary of State that he or she was providing complete and accurate information and was co-operating with enquiries. This weakens the protection for human rights in the ways outlined in paragraph 19, above. In the present context, it has the additional vice of threatening to undermine the privilege against self-incrimination and violating ECHR Article 6(1) if the enquiries result in criminal proceedings against the applicant and the information provided by the applicant under threat of withholding support is used against him or her. We draw these matters, too, to the attention of each House as constituting significant weaknesses in the safeguards for human rights under the amendment. We conclude that clause 56 should be replaced with a free-standing provision which would provide adequate safeguards for human rights and would not depend on an amendment, of doubtful effect, to Schedule 8 to the Immigration and Asylum Act 1999.

Clause 92 as amended: presumption of safety in states applying for admission to the EU, and restriction of appeals

30. Part 5 of the Bill deals with appeals against immigration decisions.[35] Clauses 90, 91 and 92 would prevent a person who is in the United Kingdom from appealing to an adjudicator against immigration decisions, or against a decision to remove him or her to a 'safe third country', on the ground that it would violate one of the person's Convention rights, if the Secretary of State has certified that the claim of a violation of the Convention right is 'clearly unfounded'. The person would have to leave the country before being entitled to appeal on that ground. The Secretary of State's certificate would be amenable to judicial review, but there would be nothing to prevent the person from being removed before the application for judicial review was heard. In our Seventeenth Report, at paragraph 98, we drew the attention of each House to its view that—

    ... it should not be possible to remove a person before he or she has had the opportunity to challenge, before an independent and impartial tribunal, the Secretary of State's certificate asserting that the person's claim to have had a Convention right violated is clearly unfounded. Removing a person in such circumstances might sometimes give rise to a violation of ECHR Article 13 (the right to an effective remedy before a national authority for an alleged violation of a Convention right).

31. Our concerns have not been addressed. What is more, on re-commitment Government amendments to what is now clause 92 were accepted which, together with amendments to what is now clause 111 (transitional provision) and consequential amendments to what is now clause 109 (interpretation of Part 5 of the Bill), would further restrict the right to appeal to an adjudicator, and extend the power of the Secretary of State to exclude appeals by issuing certificates. The effects would appear to be as follows.

32. First, while the clause as originally drafted allowed the Secretary of State, by issuing a certificate, to cut off the right of appeal of a person 'who is in the United Kingdom', the words 'who is in the United Kingdom' were removed by amendment on re-commitment. As a result, there would now be no right of appeal at all (whether from inside or outside the United Kingdom) to an adjudicator on the ground that removing a person from, or requiring the person to leave, the United Kingdom would breach the person's Convention rights and be unlawful under section 6 of the Human Rights Act 1998 ('a human rights claim'), if the Secretary of State certifies that the claim of a violation of a Convention right is clearly unfounded. Although it appears to be the Government's view that there would still be a right to appeal from outside the United Kingdom, the removal (on re-commitment) of the words 'who is in the United Kingdom' from the clause as originally drafted seems to us to give a far wider scope to the denial of a right of appeal. Nothing in the Explanatory Notes provided by the Government explains how its view of the effect of the provisions can be supported by reference to the detail of the wording of the amended clause.[36] In our view, the removal of any right of appeal results in there being inadequate protection for the human rights of claimants. We consider that the words 'who is in the United Kingdom' should be re-inserted in clause 92(2) and (7).

33. Secondly, there would similarly be no right of appeal at all (whether from inside or outside the United Kingdom) to an adjudicator on the ground that removing the person from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention ('an asylum claim').[37] We reiterate that the removal of any right of appeal results in there being inadequate protection for the human rights of claimants; the words 'who is in the United Kingdom' should be re-inserted in clause 92(2) and (7).

34. Thirdly, the effect of clause 93, which previously (in combination with what is now clause 92 as originally drafted) would have allowed a person outside the United Kingdom to appeal to an adjudicator against an immigration decision on the ground that it violated his or her Convention rights or the United Kingdom's obligations under Refugee Convention if (and only if) the person had been removed without appeal by virtue of a certificate made by the Secretary of State under what is now clause 92, has been greatly restricted following the removal of the words 'who is in the United Kingdom' from clause 92. The making of a certificate would now entirely remove the right of appeal to an adjudicator on the basis of a human rights claim or an asylum claim, and what is now clause 93 would allow the appeal only if the claimant had been removed from the country, and had then applied successfully for judicial review of the Secretary of State's certificate. For the reasons explained above, we regard this as an unacceptable limitation on rights of appeal. Even if (contrary to our view) it is possible to interpret the clauses in the way for which the Government contends, it would involve following complex cross-references between clauses, and would not be as clear as is desirable when dealing with provisions which impact on human rights. The problem could be ameliorated by re-inserting the words 'who is in the United Kingdom' in clause 92(2) and (7), and we consider that the clause should be amended accordingly.

35. Fourthly, there would be new restrictions on appeals against decisions to remove people to the Republic of Cyprus, the Czech Republic, the Republics of Estonia, Hungary, Latvia, Lithuania, Malta, or Poland, the Slovak Republic, or the Republic of Slovenia (ten of the 'accession states', or aspirant new member states of the EU[38]). These places would be presumed to be safe unless the claimant could satisfy the Secretary of State that the claim to have no safe place to go to was not clearly unfounded in the claimant's particular case. If the claimant failed to persuade the Secretary of State that the claim was not clearly unfounded, the Secretary of State would be obliged to issue a certificate under clause 92(2), and this would cut off the right of appeal to an adjudicator against the decision, whether from inside or outside the United Kingdom.

36. In his article in The Times on 7 October, referring to claims from people with a right to reside in one of the listed democratic states which are (or may be) about to join the EU, the Home Secretary wrote:

    I'm not going to rule out all examination of these claims. To do so would breach the Refugee Convention and European Convention on Human Rights. But applicants will have to rebut the presumption that their country of origin is safe, and any appeal will have to be from abroad, rather than in the UK. I will also seek a power to add countries to this list, with the safeguard that I will consult an independent advisory group which I am now establishing about the assessment of risk in the country.

37. The presumption that a country is safe is of questionable validity. As observed on re-commitment, the United Nations High Commission for Refugees (UNHCR) does not accept that any country can be declared 100 per cent safe,[39] a view shared by the House of Lords Select Committee on the European Union.[40] There is also widespread discrimination against certain groups, such as Roma in the Czech Republic and the Slovak Republic.[41] We note that European Community law requires Community institutions and Member States to respect the Geneva Convention on the Status of Refugees (although the responsibilities of the United Kingdom were to some extent restricted by Protocols annexed to the Treaty of Amsterdam). We also observe that the Charter of Fundamental Rights of the European Union, addressed to institutions and bodies of the European Union and to Member States when implementing EU law, reflects the need for respect for the right not to be removed to a state where there is a serious risk that the person would suffer death, torture, or inhuman or degrading treatment or punishment.[42] We realise that it would be open to asylum-seekers to present evidence that the state in question was not safe for them in their own particular circumstances, but in view of the well-authenticated threats to human rights which remain in the states seeking accession to the European Union, we consider that a presumption of safety, even if rebuttable, would present a serious risk that human rights would be inadequately protected. We consider that the presumption of safety is unacceptable on human rights grounds, and we draw this to the attention of both houses. For the same reasons, we have the same reservation about the power to add states to the list of 'safe states' by subordinate legislation.

38. Furthermore, if our understanding of clause 92 as amended on re-commitment is correct, it does not contain the safeguards described by the Home Secretary in his article. If the Secretary of State certifies that the applicant's human rights or asylum claim is clearly unfounded, there would be no appeal, either from within the United Kingdom or abroad, unless the certificate had first been quashed on an application for judicial review.[43] If the claim is an asylum claim rather than a human rights claim, it is highly unlikely that the applicant would be allowed to remain in the United Kingdom pending the outcome of the application for judicial review: under clause 92(8), when deciding whether to remove someone to a country specified in the certificate, that country is to be regarded as a safe country for the purposes of the Refugee Convention. Even if the claim was a human rights claim, there would be no guarantee that the Secretary of State would allow the claimant to remain in the United Kingdom until the application for judicial review of the certificate had been finally determined. For reasons developed in paragraph 98 of our Seventeenth Report,[44] this might provide inadequate safeguards for human rights, and could lead to a violation of the right to an effective remedy before a national authority for arguable violations of Convention rights under ECHR Article 13.

39. We consider that clause 92 should be amended to provide the protection which the Secretary of State wrongly considers the clause, as amended on re-commitment, provides, and should prevent a person from being removed from the United Kingdom without being allowed an appeal unless an application for judicial review of the Secretary of State's certificate would have the effect of suspending the removal pending the determination of the application for review. We draw this to the attention of each House.

40. We note, in addition, that clause 92 as amended does not impose any duty on the Secretary of State to consult the proposed independent advisory group, to which he referred in his article, before adding new countries to the list of presumptively safe states. Creating a presumption that a place is safe for asylum-seekers to return to has major human rights implications. The step should not be taken unless the evidence of safety is very clear. Advice from an independent advisory group would be a valuable safeguard for human rights in the face of a power such as that proposed in the amendment. We consider that clause 92(5) should be amended so as to require the Secretary of State to obtain, and have regard to, advice from the independent advisory group before adding states to the list of those which are presumed to be generally safe. We draw this to the attention of each House.




15   See our Seventeenth Report, n. 2 above, at paras. 63-81 Back

16   Clause 54 (1) Back

17   Immigration and Asylum Act 1999, s. 4 Back

18   Immigration and Asylum Act 1999, s. 95, as it would be amended by the Bill Back

19   Immigration and Asylum Act 1999, s. 98 Back

20   Clause 54(1) and (2) Back

21   Clause 54(3) and (4); Immigration and Asylum Act 1999, s. 99 as it would be amended by clause 55, also inserted on re-commitment Back

22   HL Debs, 17 October 2002, cc. 984 (Lord Campbell of Alloway), 998-999 (Lord Filkin) Back

23   Joint Committee on Human Rights, First Report of 2001-02, Homelessness Bill, HL Paper 30, HC 314, para. 10 Back

24   (2000) 33 H.L.R. 419 Back

25   Westminster City Council v. National Asylum Support Service, The Times, 18 October 2002, HL Back

26   This point was made by Baroness Aneley of St. Johns when moving an amendment to the clause: HL Debs, 17 October 2002, cc. 982-983 Back

27   ibid., c. 997 Back

28   HL Debs, 17 October 2002, cc. 992, 996 and 997 (Lord Hylton, Lord Joffe and Lord Clinton-Davis) Back

29   ibid., c. 999, in response to questions from Earl Russell and Lord Clinton-Davis Back

30   ibid., c. 1002 Back

31   Clause 54(10) Back

32   Immigration and Asylum Act 1999, s. 95(12) and Sch. 8, para. 1 Back

33   op. cit., n. 3, above Back

34   Summary Record of the 811th Meeting of the Committee on the Rights of the Child held on 19 September 2002, CRC/C/SR.811, para. 21 (Ms. Khattab) Back

35   For our earlier comments on this Part of the Bill, see our Seventeenth Report at paras. 93-108 Back

36   Clause 92(1), (2) and (7) as amended Back

37   Clause 92(1), (2) and (7) Back

38   The Secretary of State would be empowered to add states to the list by statutory instrument Back

39   HL Debs, 17 October 2002, cc. 1019-1020 (Lord Goodhart) Back

40   Select Committee on the European Union, Eleventh Report of 2000-2001, Minimum Standards in Asylum Procedures, paras. 122 and 133 Back

41   These and similar concerns in relation to a number of accession states are expressed by the European Commission in their recent 2002 Regular Reports on Progress towards Accession, a point also noted in the House of Lords on re-commitment by Lord Avebury, HL Debs, 17 October 2002, cc. 1027-1029. See in particular the points made in reports on Estonia, SEC(2002) 1402, pp. 27-30 (position of stateless persons, who constitute about 12.5% of the population; use of force by police; treatment, including arbitrary detention, of disabled and mentally ill persons); Czech Republic, SEC(2002) 1402, pp. 28-33 (treatment of people in police custody; legislative discrimination against religious groups, especially minority religious groups; and widespread discrimination against Roma in education, housing and employment, despite attempts to improve the position); Hungary, SEC(2002) 1404, pp. 27, 31-33 (degrading treatment by police, especially of Roma, who are also worst affected by inequalities despite efforts to assist them); Latvia, SEC(2002) 1405, pp. 28-34 (living conditions at asylum detention centre; treatment of disabled and mentally ill persons; Parliament's rejection of ratification of Council of Europe Convention on the Protection of National Minorities; language laws affecting people's freedom to use own language); Lithuania, SEC(2002) 1406, pp. 27-30 (degrading treatment by law enforcement officials; lack of respect for principle of non-refoulement in asylum cases); Slovakia, SEC(2002) 1410, pp. 27-32 (degrading police treatment of people, especially Roma; discrimination against vulnerable and disabled persons, particularly in higher education, employment and access to social services; living conditions in institutions for mental patients; lack of integration of Roma, who endure poor housing and services and are vulnerable to racially motivated violence); Slovenia, SEC(2002) 1411, pp. 25, 27-28 (sometimes excessive use of force by police against people in custody, particularly Roma, although in other respects it should be noted that Roma enjoy special protection in Slovenia) Back

42   TEC Article 63 and Protocols to the Treaty of Amsterdam; EU Charter of Fundamental Rights, Arts. 18, 19(2), 51(1)  Back

43   See paragraph ***, above  Back

44   See paragraph ***, above Back


 
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