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Immigration and Asylum Bill

8.35 p.m.

House again in Committee.

[Amendment No. 26A not moved.]

Clause 9 [Removal of asylum claimants under standing arrangements with member states]:

Lord Williams of Mostyn moved Amendment No. 27:


Page 6, line 22, leave out from beginning to end of line 27 and insert--
("( ) Unless a certificate has been issued under section 62(2)(a) in relation to a person, he is not to be removed from the United Kingdom--
(a) if he has an appeal under section 55 against the decision to remove him in accordance with this section pending; or
(b) before the time for giving notice of such an appeal has expired.").

The noble Lord said: The amendments in this group repair an omission. The combined effect of Clauses 9, 10, 61 and 62 is that a person who is to be removed to a safe third country, and whose case has been certified by the Secretary of State, has no right of appeal on asylum grounds while in the United Kingdom. Clause 9 deals with removals to EU member states. Clause 10 deals with removals to other states designated by order and to EU states other than under standing arrangements.

In all these cases, there remains a right of appeal on human rights grounds under Clause 55. Such grounds may be quite unconnected with the asylum claim. However, some applicants may choose to lodge a human rights appeal for tactical purposes. In such cases and in other appropriate circumstances, the Secretary of State may certify under Clause 62(2)(a) that the human rights claim is manifestly unfounded. There would then be no in-country right of appeal to an adjudicator.

As the Bill stands, an applicant whose human rights claim had been certified could not be removed until the time for appealing had expired. This is an unintended anomaly. I ought to add that nothing in these clauses nor in the amendments would prevent an applicant from seeking judicial review of the Secretary of State's certificate in relation to a human rights claim and no one would be removed while such a judicial application was pending. I therefore invite the Committee to agree to these amendments.

On Question, amendment agreed to.

12 Jul 1999 : Column 97

Lord Cope of Berkeley moved Amendment No. 28:


Page 6, line 30, at end insert--
("( ) Special arrangements shall be made to facilitate and expedite the removal of any person from Northern Ireland who, after taking independent legal advice, requests his removal to a member state within the Common Travel Area as defined by section 1(3) of the 1971 Act.").

The noble Lord said: As will be apparent from the support for the amendment and its phrasing, the amendment refers particularly to the position in Northern Ireland.

The Northern Ireland Human Rights Commission drew my attention to the fact that sometimes there are difficulties with people who stray over the border. Members of the Committee who know Northern Ireland will know that the land border with the Republic is not always well marked on the ground. It can be difficult to know precisely where the border goes. People wander across it from time to time. When I was a Minister, even members of our own security forces crossed the border without realising, and ordinary civilians frequently did so.

The Northern Ireland Human Rights Commission points out that people who have claimed asylum in the Republic of Ireland can enter Northern Ireland without knowing that they have entered a separate jurisdiction and without realising the consequences of doing so. They often wish to return immediately to the Republic, but having crossed the border they are usually detained--I am not criticising the authorities for that--while procedures for their return are pursued under the Dublin Convention.

The aim of the amendment is to provide a quick way to facilitate the return of such people to the Republic, but there is a safeguard that they should have legal advice for doing so to ensure that they do not go back without having considered the consequences. I agree with the commission that if arrangements such as those described in the amendment were put in place, removal would be made easier and the length of detention would be reduced. Special administrative arrangements would be necessary, but they would not be impossible to devise.

Detention in such circumstances means spending time in one of Northern Ireland's prisons. We can deal with the matter in more detail on a later amendment. Suffice it to say that there are no detention centres in Northern Ireland and Northern Ireland's prisons are very high security establishments--for entirely different reasons--so detention is not a matter to be taken lightly. That adds weight to the argument for an arrangement to allow those who stray across the United Kingdom's only land border to be returned to the previous jurisdiction without the need for the current elaborate bureaucratic procedures. I beg to move.

Lord Williams of Mostyn: I am grateful to the noble Lord, Lord Cope of Berkeley, because when I first saw the amendment it was not clear to me at what mischief it was aimed. It relates to the position of someone who is liable to be removed from Northern Ireland and who, after taking independent advice, expresses a desire to be removed to another member state within the common

12 Jul 1999 : Column 98

travel area. We spent a little time dealing with the common travel area earlier this afternoon. In effect, as the noble Lord, Lord Cope, says, it can only be the Republic of Ireland.

Transfers between states that have subscribed to the Dublin Convention may take place in various circumstances. I am happy to reassure the Committee that if the subject of the intended transfer consents, which is the underlying presupposition of the amendment, only the agreement of the receiving state is required for transfer to go ahead. We have not found it necessary to draw up formal arrangements between the United Kingdom and the Republic of Ireland to ensure that such transfers take place expeditiously. I take the noble Lord's point that one needs to be prompt. I am grateful to him for raising the issue. I shall reinvestigate whether there have been any problems. I understand that there have not been any and I am happy to give that reassurance.

8.45 p.m.

Lord Cope of Berkeley: I am grateful for that reassurance from the Minister. I shall suggest to the Northern Ireland Human Rights Commission that it should contact him on the matter. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 9, as amended, shall stand part of the Bill?

Lord Dholakia: There are occasions when it is difficult to propose an amendment where there is a clear breach of certain articles--in this case Article 33 of the refugee convention and Article 3 of the European Convention on Human Rights. That is why we oppose Clause 9 standing part of the Bill.

Before long--possibly in the latter part of this year--the heads of government will meet in Helsinki, where one of the items for discussion will be immigration and asylum. There is no common policy among EU states on how to deal with such matters.

Clause 9 was added to the Bill after the lengthy consultation process that preceded its drafting and after it had received detailed consideration, including the taking of written and oral evidence in the Special Standing Committee of the House of Commons. I do not understand the purpose of the rush, but it is a matter of grave concern that the clause would restrict the jurisdiction of the courts and the appellate authorities on matters of fundamental human rights.

The clause deals with those whose claims are certified by the Secretary of State on the grounds that they can be properly and safely dealt with in other member states of the European Union. There is no in-country right of appeal against such certification decisions, but in appropriate cases the certificates can be reviewed on the grounds that the Secretary of State has erred in law. Clause 9 would remove that residual supervisory jurisdiction of the courts over the lawfulness of certain ministerial decisions, thereby removing any independent oversight.

12 Jul 1999 : Column 99

All European Union countries are signatories to the refugee convention, but their interpretation of the provisions varies significantly. One of the critical issues on which there is no uniformity is whether the convention applies to prosecutions not carried out by the state that the state is unable or unwilling to prevent. That situation can arise in civil law when the state cannot stop prosecutions by powerful bodies and reaches its logical conclusion where effective government has collapsed.

Some Court of Appeal cases raise issues of concern, particularly the case of Gashi, in which a ministerial certificate stating that Germany was safe for Kosovar Albanians was quashed because fewer than 3 per cent were granted refugee status there whereas there was a 100 per cent recognition rate in the UK. The same problem arises with regard to Somalis and Algerians in France. A Court of Appeal ruling on that is expected shortly. Germany and France are EU states with well developed refugee and constitutional protection systems. In principle, a state signatory to an international convention should not cede its obligation to another state unless there are binding guarantees of safe practices that can be enforced at supranational level. Those guarantees and procedures do not exist in the European Union.

Clause 9 is a clear breach of the UK's international obligation under the refugee convention. We need agreed and enforceable criteria in all member states and a guarantee that those seeking protection under the refugee convention or the ECHR are able to obtain secure status.


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