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Earl Russell: My Lords, when we considered this amendment in Committee the noble Baroness said that she could not accept it without making the whole procedure unworkable. I hope that she is wrong about that. If she is right it means that we cannot legally operate the procedure at all. I draw the attention of the noble Baroness to a passage from the preamble to the UN Convention on the Status of Refugees, not all of which passage she will find uncongenial. It states:


It cannot be achieved without international co-operation because it does not work to have a game of pass the parcel, or pass the refugee around the world from one country to another. As many of us know, that process tends to happen at the expense of the airlines, and I can see no justice in that.

But that is not the only reason why it does not work. The major international obligation to which we are subject under the UN Convention is that contained in Article 33. I refer to the obligation relating to refoulement. The words of the article read:


    "No Contracting State shall expel or return"--
that is "refouler" in French--


    "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",
etcetera.

There is judicial authority in this country for the proposition that the words "in any manner whatsoever" include a billiard ball return via a series of third countries. It is those billiard ball returns which the amendment of the noble Lord seeks to prevent. If there is not an agreement in advance, for example if the

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country to which the asylum seeker is returned states that the individual is an illegal entrant and they will not consider his claim, the individual ends up being sent back from where he came. That is refoulement, and it is the greatest breach of the convention that there can be. The noble Baroness should either accept this amendment or withdraw Clause 2. I hope that she can accept the amendment.

Lord Renton: My Lords, I am sure that the noble Earl realises that Amendment No. 26 in his name is in conflict with Amendment No. 28 in the name of the noble Baroness. The amendment in the name of the noble Baroness requires a written agreement covering all cases, or the general situation. Amendment No. 26 requires an undertaking to be given with regard to the particular application. While I am not committed to either, in those circumstances I prefer the general to the particular.

We are dealing with deportations. I know from experience years ago when I was involved in these matters in the Home Office that deportation is always a delicate, difficult matter. We have to get it right before we ever do it. The conditions laid down in subsection (3), which the Secretary of State and those advising him would have to observe, are stringent enough. He has to take great care. It is suggested--I shall deal with the more sensible, if I may say so, amendment of the noble Baroness--that he should not deport unless there is:


    "a written agreement between the government"--
of the country to which the person is to be deported--


    "that that person will not be removed to another country"--
that means a third country--


    "until any appeal process has been exhausted or abandoned ... in accordance with the terms of the Dublin Convention".

I have to confess that I do not remember the terms of the Dublin Convention, but that may not be material to my argument. The conditions which the Secretary of State has to fulfil and certify, as set out in subsection (3), are stringent enough to ensure that no injustice is likely to be done. That is why I doubt whether either of the amendments is necessary. If one of them is thought to be necessary, as I say, I prefer that of the noble Baroness.

Baroness Blatch: My Lords, in Committee, I set out the Government's general position on agreements and undertakings in third country cases. It may assist the House if I restate our position. We are certainly not opposed to bilateral or multilateral agreements where they can be negotiated. The Dublin Convention will provide a mechanism for determining which member state is responsible for determining an asylum application lodged within the European Union.

Perhaps I may refer to the quotation used by the noble Baroness regarding the Dublin Convention. It does not mean what she deduced from it. It means that the UK must within six months approach the third country which it believes is responsible for considering the claim. The Dublin Convention provides a mechanism for considering disputes between member states about

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which state is responsible for considering a claim. The text of the amendment cannot be derived from the Dublin Convention.

The United Kingdom ratified that convention five years ago. We look forward to it coming into force as soon as possible. In Committee, in response to a question from the noble Baroness, Lady Williams, I explained that the Dublin Convention would not come into force until two months after it had been ratified by Ireland and the Netherlands. The indications now are that Ireland and the Netherlands appear to be on course to ratify the Dublin Convention during the forthcoming Irish presidency of the European Union. We all hope that that will be the case. In the meantime, removals to France are covered on a case-by-case basis by a bilateral agreement which we have negotiated separately.

The Government do not, however, accept that third country removals should not proceed in the absence of an agreement with the third country. If we were obliged to obtain undertakings from third countries on a case-by-case basis, we would be unable to operate an effective third country policy. We could expect third countries to refuse to take applicants back. Applicants would know that they could travel from country to country, before finally claiming asylum in the United Kingdom, safe in the knowledge that we would not return them to the safe country from which they had come.

Amendment No. 26 would prevent the removal of an asylum seeker to a safe third country unless that country had given an undertaking that it would consider his asylum claim.

We do not see that as a necessary condition in third country cases. If the third country refuses to consider the claim substantively, it does not follow that there has been a breach of the 1951 convention or that the asylum seeker has been placed at risk. There are circumstances where the third country to which we had removed an asylum seeker might refuse to consider that person's asylum claim substantively, but the asylum seeker would not be at risk.

Let me give three examples. First, suppose we removed an applicant to France, and France immediately granted the asylum seeker leave to remain, but did not consider his asylum application. The applicant might, for instance, secure leave on the basis of marriage to a French national. In those circumstances, the applicant would be perfectly safe in France. There is no reason why we should obtain an undertaking from a third country that it will consider the asylum claim rather than grant leave on a different basis.

Secondly, suppose we removed an asylum seeker to France, and France had evidence that the applicant had originally travelled to France via Germany. It would be perfectly proper for the French authorities to conclude that it was Germany's responsibility to consider the application, and send the asylum seeker back to Germany. That is a second clear example of a case where the third country would have refused to consider the applicant's asylum claim, without in any way putting the applicant at risk.

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The third example would be a case where the third country refused to admit the applicant and returned him to us. We hope that such cases would not occur too often. But the asylum seeker would not have to be exposed to danger and no breach of the convention would have occurred. These examples illustrate that there are a number of situations where the third country would not consider the asylum claim substantively but there would be no risk to the applicant. In the absence of binding multilateral agreements, the constraints imposed by the amendment would bring third country removals to a halt. Therefore, we cannot accept Amendment No. 26.

9.15 p.m.

Baroness Williams of Crosby: My Lords, before the Minister sits down perhaps I may make one point of clarification. She was absolutely right in what she said and I was wrong. I referred to the fact that application had to be made by the third country within six months. I did not wish to detain the House by going on to further parts of the articles, but I should have made the point that where it is clear that if the other country does not accept that application within three months, not six months, it rests with the state which originally made the request.

My point was that an agreement between two countries with a time limit would already apply in the case of the Dublin Convention. I was trying to get on the face of the Bill the fact that there would be a written agreement between two countries with regard to this matter before an asylum seeker would be able to be sent to a third country. In other words, his right of appeal would be upheld even if he were sent to a third country within the terms of the convention. I am sorry if I did not continue to the further subsection of Article 11.


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