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The noble Lord said: This is another issue raised by Justice. Under Clause 39 extradition cannot be ordered where the person whose extradition is requested has made an asylum claim and that claim has not been finally determined. A claim is finally determined after it has been rejected and when the appeal against that rejection is dismissed or when the time for appealing has ended without an appeal being brought.
Clause 39(9) states that if the Home Secretary has rejected the claim as being clearly unfounded, the asylum claim is treated as being rejected immediately and therefore cannot be used as a bar to extradition.
Extradition does not terminate the right of appeal against the rejection of an asylum claim. Under Section 94 of the Nationality, Immigration and Asylum Act 2002, if an asylum claim is certified as unfounded, it does not prevent the appeal but allows an asylum seeker to be returned to his country of origin pending the hearing of an appeal. The Home Secretary issues the certification that the claim is unfounded when he dismisses the claim.
That particular pointthe power to send someone back to his country of origin on the basis of the Home Secretary's certificate that the claim was unfounded when an appeal against the rejection of the claim is still pendingwas the subject of a great deal of controversy and debate during the passage of the 2002 Act. Be that as it may, it is now the law and must be accepted as such. However, I believe that there is a distinction between the cases where extradition is sought and other cases.
In the great majority of cases that the Home Secretary certifies as unfounded nothing adverse will happen to the returned asylum seeker. Of course if extradition is sought it is known that the person on his return will face a criminal trial. It will therefore be that much more difficult for that person to make an out-of-country appeal against a rejection of the asylum claim. I recognise that no extradition can in any event be made until after the hearing has decided that the order has been made, but that is another matter.
Further, if the appeal from the rejection of the asylum claim is grantedas indeed is bound to happen occasionallyit may well be useless to allow the appeal because the person who sought asylum is locked up pending a trial or is serving a sentence and therefore will be entirely unable to return to the United Kingdom in order to claim asylum. I therefore believe that cases in which an extradition warrant has been issued require special treatment and that the extradition order should not be carried into effect while the asylum application has not been finally determined whether or not it is a case in which the Home Secretary has certified that the claim for asylum is unfounded. I beg to move.
Baroness Scotland of Asthal: I agree with the noble Lord and accept that the changes made to the immigration and asylum law by the Nationality, Immigration and Asylum Act 2002, now that they have come into force, have brought about considerable change. Because of that change, it may well be necessary for us to revisit the way in which the Bill is currently structured in order to give voice to the intent that we still have to have an integrated system, which is more proof against abuse but which still allows the kind of care and protection that we would need to have in place for those who are meritorious of our protection. Therefore, I cannot explore that too far at this stage.
It may be of importance and noteworthy for me to explain how we see extradition interacting with asylum provisions because we shall seek to continue the principles upon which the scheme is founded. So it may be helpful for me to outline how we see the two emerging. I hope that that will enable noble Lords better to understand whatever further provisions we may have to make.
The Committee knows that as our extradition law currently stands, we cannot extradite a person serving a custodial sentence in the United Kingdom. We have to wait until he has completed his sentence before we can accede to any I hear mutterings behind me.
Baroness Scotland of Asthal: No. As our extradition law currently stands, we cannot extradite a person serving a custodial sentence in the UK. Perhaps the Committee will give me one minute. I seem to have had a mental aberration.
Baroness Anelay of St Johns: Those of us on this side of the Chamber who suffered throughout the whole Nationality, Immigration and Asylum Bill certainly feel for the Minister and are quite happy to give her a few moments.
As I said, I am grateful to the noble Lord for tabling the amendment. It allows me the opportunity to explain the Government's approach to the provisions. I hope now that I shall be relating the correct one. The amendments relate to a very complex provision in the Bill that deal with the situation where extradition and asylum meet, as indeed did those to which I have just spoken. There are clearly some very strong and basic principles involved. I shall try to explain why these provisions, and other related ones, are drafted as they are.
It is well known that the asylum system has been subject to abuse, as I said earlier. The Home Office has made great efforts to reduce the potential for such abuse and continues to do so. We also know that the asylum system has been used as a means to delay and frustrate the extradition process. The Committee may have noticed why the previous notes and the current ones seem to have merged in my mind.
As well as a growing incidence of cases involving both issues over recent yearsnow approximately 15 per cent of ongoing caseworkwe have even had the national of an EU member state claiming asylum. Such claims are often made with the express purpose of frustrating extradition on the basis of groundless applications being made.
That is why we included in the Bill provisions specifically to deal with this difficult situation and to address spurious asylum claims and appeals. Our aim in including these provisions is that the asylum system should not be open to abuse or delay or used to frustrate extradition. However, it is also our position that a person who genuinely fears persecution should not be prevented from having the opportunity to seek refuge. We believe that, by including these specific provisions in the Bill, a balance has been struck between these imperatives.
Perhaps I may explain a little further about the provisions and how they will work. Any asylum application made after the extradition request was received would be considered in the normal way, but as a matter of priority. If the application were refused, the person would then be able to appeal, not using the existing appeal processes available to asylum applicants in other circumstances, but to the High Courtthe same venue as the extradition appeal. These modified appeal procedures have been set out in the clauses. We shall reach them later under Part 5.
Clause 39 contains slightly different provisions to the corresponding clause in Part 2. In a Part 1 case, if the claim were considered to be clearly unfounded, it would be certified as such by the Secretary of State when refusing the claim. The effect of this certificate would be that the person could appeal against the asylum refusal from abroad, but only after extradition.
However, immigration and asylum law, as I said, has developed significantly since the Extradition Bill was introduced in another place last November. The provisions of the Nationality, Immigration and Asylum Act 2002 have now come into force, which have brought with them considerable change. So we will have to, as I said right at the beginning, look at this and see what can be done. Therefore, although I am not able, as I said earlier, to give specific details at this time, I would say that it is highly likely that amendments will be introduced in due course to reflect a different approach.
Our aim remains the samethat the asylum system should not be abused to delay or frustrate extradition, while at the same time allowing an individual the opportunity to seek refuge in the face of persecution.
I hope that the noble Lord, Lord Goodhart, is reassured that the Government are committed to their obligations under the 1951 refugee convention and to the fundamental right of the individual to seek protection where it is necessary. At the same time, the Government have made it clear that we intend to deal robustly with spurious or abusive asylum claims. Therefore, in the light of those comments, I invite the noble Lord to withdraw his amendment.
Baroness Anelay of St Johns: Before the noble Lord, Lord Goodhart, replies, I should like to thank the Minister, as I am sure the noble Lord will, for outlining the Government's further thoughts on these matters. When I first came to look at the Bill itself and the discussions in another place, I telephoned the Immigration Advisory Service because, given our debates in the past year on the Nationality, Immigration and Asylum Act, I was concerned about the implications of these provisions. I am certainly aware that there was hope outwith the House that the Government would look cautiously at some amendments to this Bill.
I appreciate that the Minister cannot give us a timetable within which amendments may be brought forward, or even tell us whether they will be brought forward. However, would it be the normal expectation that we will see important amendments such as this on Report rather than leave it to Third Reading? She will know that there was some vexed feeling in the House on the nationality Bill when substantial amendments were brought forward at a very late stage.
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