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Lord Dholakia: My Lords, I support the amendments spoken to by my noble friend Lord Phillips of Sudbury, in particular, Amendment No. 7.

My main concern relates to a particular group of people for whom provision should be made with regard to appeals, particularly in cases where those concerned were not aware of their status in this country. For example, youngsters who came here with their parents and whose parents left the country would not know their legal status in this country. They would assume that they were here legally. They would only find out at a later date that they had been overstayers for many years. They would not have had any reason to believe that the publicity about a regularisation period applied to them.

I have been in correspondence with the Home Office about the case of Ben James. He came to this country at a very early age. Now, after about 17 or 18 years--during which time he has been contributing as a businessman in this country--he is subject to deportation because he overstayed here, not realising his status. The amendments suggested by my noble friend Lord Phillips of Sudbury would enable him to have a reasonable excuse. That fact should then be taken into account by the Secretary of State when considering the right of appeal.

4.45 p.m.

Lord Williams of Mostyn: My Lords, I am grateful for the explanation of the amendments given by the noble Lord, Lord Phillips of Sudbury. Perhaps it will assist if I indicate what we have in mind for Clauses 8 and 9. The regularisation period in Clause 8 will end on a prescribed day or the day before Clause 62 comes into force, whichever is the later. Clause 9 comes into force the day after the regularisation period ends; that is to say, either the day after the prescribed day or when Clause 62 comes into force. We are aiming to bring Clause 62 into force when the Human Rights Act comes into force, so the earliest that Clause 9 can come into force is on the same day as the Human Rights Act. We have arrived at the conclusion the noble Lord, Lord Phillips, seeks, but by a different route. I hope that that is sufficient to satisfy the noble Lord on that aspect.

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I cannot accept Amendment No. 5. The period would end,


    "not less than three years after the coming into force of this Act".

But the various provisions of the Bill come into force in instalments. Some--for instance, those listed in Clause 169--come into force on Royal Assent; others,


    "on such day as the Secretary of State may by order appoint",

and,


    "different days may be appointed for different purposes".

The amendment would not produce any clarity. It simply is not workable.

The greatest difficulty is that Amendments Nos. 5 and 6 together would allow the regularisation period to continue beyond the point at which the new administrative removal powers in Clause 9 come into force. So if someone was identified as an overstayer and removal directions were given, the person concerned would be able, quite legally, to make an application for leave to remain under Clause 8, and the whole process would grind to a halt. There would be no requirement to apply before a particular date. Indeed, it can be seen that there would be every incentive not to do so.

Amendment No. 7 would extend the protection from removal under Clause 9 powers enjoyed by those who have applied under Clause 8, to include not only those who have applied but those who might have applied but had a reasonable excuse for not doing so. Even if the Secretary of State concluded that the person concerned did not have a reasonable excuse for failing to apply, the person will still not be able to be removed under Clause 9 because the amendment gives a further right of appeal to an adjudicator against the decision that he did not have a reasonable excuse.

I hope my explanation that commencement is to be coincident with the Human Rights Act will satisfy the noble Lord. We are back to our old friend, "endless unjustified delays." I understand the point behind his amendments but I am not able to accept them.

Lord Phillips of Sudbury: My Lords, in the circumstances, I propose to withdraw the amendment. Obviously we on these Benches are not content about the issue of reasonable excuse. I can understand the technical points raised by the noble and learned Lord the Attorney-General. I am obliged to him for his explanation about the timing and the Human Rights Act.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 9 [Removal of certain persons unlawfully in the United Kingdom]:

[Amendment No. 7 not moved.]

Clause 10 [Removal of asylum claimants under standing arrangements with member States]:

Lord Goodhart moved Amendment No. 8:


Page 6, line 31, at end insert--
("( ) Subsection (1) above shall not apply when the Member State limits in any way the definition of a refugee in Article 1(A) of the Refugee Convention.").

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The noble Lord said: My Lords, on Report we on these Benches moved an amendment to leave out what is now Clause 10. We withdrew the amendment because we agreed to wait and see whether anything would emerge from the special council at Tampere to render the amendment obsolete. It soon became apparent that nothing relevant had materialised at Tampere. However, although we have returned to the battle, we are now moving a more limited amendment.

On Report I explained at length the background to our concerns. I shall not do so again, but merely deal with our position in summary fashion. Article 1 of the Geneva Convention on Refugees, to which the United Kingdom and all other European Union states are parties, 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".

There is unfortunately a difference of interpretation of this definition among the member states of the European Union. France and Germany say that the convention applies only if persecution is by the state itself or with the complicity of the state. United Kingdom law, as laid down in a landmark decision of the Court of Appeal in July, has said that it is sufficient if the persecution is by a non-state group and the state is unable to prevent it, although I recognise that that appeal decision is itself subject to appeal to the House of Lords. Thus, under the decision of the Court of Appeal, people can be refugees if, for example, they fear persecution by the Tamil Tigers in Sri Lanka or by Islamic militants in Algeria, and the governments of Sri Lanka or Algeria are unable to protect them from that persecution.

The difference of interpretation becomes important because, under the Dublin convention, if an asylum seeker enters the European Union through one country and claims asylum in another, the latter is entitled to return the claimant to the country of first entry to have his or her claim determined by that country under its own laws. In a claim based on non-state persecution, if claimants have entered through France or Germany and we return them to that country after they have applied for asylum here in the United Kingdom, they will be refused asylum, even though the United Kingdom would have allowed that claim. That seems to me to be plainly wrong.

Under Section 2 of the Asylum and Immigration Act 1996, the Home Secretary could remove a claimant to another country only if he could, among other things, certify that the government of that country would not send the claimant to another country otherwise than in accordance with the refugee convention. On judicial review the Court of Appeal said that the Home Secretary could not give such a certificate where he was proposing to send the claimant to France or Germany, and that claimant's claim was based on non-state persecution. That was because the restrictions on the interpretation of the refugee convention in France and Germany meant that those countries might return a refugee to his country of origin.

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Clause 10 would overcome this conclusion, which seemed so awkward for the Government. It does so by saying that a European member state,


    "is to be regarded as--


    (b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention".

So there is no discretion on the Home Secretary, no certificate for him to sign, and nothing upon which judicial review could bite. The courts are simply required to accept as true something which the Court of Appeal has already decided is not true. That seems to us to be a wholly improper form of legislation.

If the Court of Appeal's interpretation of the refugee convention is right, this clause will involve potential future breaches of United Kingdom obligations under the refugee convention. It is true that the claimant will be able to apply to a court for a declaration under Clause 62 of the Bill, that his or her deportation would be in breach of his or her rights under the Human Rights Act. However, those rights are not as extensive as those outlined in the refugee convention. The Human Rights Act might well regard the threat of a return to the country of origin as a breach of a right to life under Article 3, if that return would create a serious risk to the claimant's life. It is much less likely to be a breach of the Human Rights Act if there is persecution short of the serious threat of death. The right of asylum itself is not a convention right under the Human Rights Act.

For that reason, if one looks back to the situation in the 1930s, one might say that the refugee convention, had it then been in force, would have given Jews the right of asylum in this country if they came from Germany. However, the Human Rights Act would not have done so until they reached a stage considerably later, when it became apparent that it was not only their careers and their property that were under threat, but their very lives.

In the debate on Report the noble and learned Lord, Lord Falconer of Thoroton, said that France and Germany were highly advanced democracies with independent courts and distinguished advocates. So they are. He then went on to say that it was natural that different courts would reach different interpretations of the convention. That is also true. He therefore implied--I hope that the noble and learned Lord will not feel that I am being unfair to him--that differences of interpretation are not of crucial importance; that one interpretation is as valid as another; and that there is therefore no reason why we should not return claimants to France or Germany. He said that France and Germany, even when they refuse asylum in a non-state persecution case, can offer alternative forms of protection. That may well be true. However, if that is the case, the Home Secretary could, under the existing law, properly give a certificate in most, if not all, non-state persecution cases.

However, we cannot support this legislation because it removes any need at all for a certificate from the Home Secretary. The legislation will enable the Home

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Secretary to act, as we see it, in breach of the refugee convention, as interpreted by our courts, without any form of redress.

This amendment is limited in its effect. It simply excludes Clause 10 from operating where a member state interprets the refugee convention in a more limited way than we do. In that case, the Home Secretary would simply have to fall back on Clause 11, which is basically the old law restated. We believe that the amendment deserves support. I beg to move.


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