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Baroness Anelay of St Johns: My Lords, I thank the Minister for that explanation. I make it clear from the beginning that we support the making of the regulations. However, I have one or two questions. I

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should perhaps add that the Minister has already satisfied me on probably the most significant of those. It is right that we should take all reasonable measures to ensure that persons given permission to enter the United Kingdom are indeed who they say they are. I was therefore pleased to hear at the end of the Minister's remarks an explanation of why the Government have lighted upon Sri Lanka. He said that there have been significant numbers of unfounded applications from that country. I am particularly pleased that the Government have received the co-operation of the Sri Lankan Government. That is the important aspect which we hope will make this pilot exercise work.

The Minister said that the pilot is expected to last six months. What will be the measure of the success of the pilot scheme at the end of the six months? On what basis will the Government decide that the scheme has been sufficiently successful to be rolled out elsewhere? Do the Government have in their eyesight any other areas which will be second, third and fourth on the list? If so, is the Minister able to give us any indication? I appreciate that that will depend on whether the Government have already begun speaking to other governments on these matters.

The Minister said that the fingerprints will be taken at the diplomatic mission and then transmitted to the United Kingdom. Will the fingerprints be taken by the new laser technology? One assumes so. If so, which electronic transmission system will be used and how secure will it be? The Minister will be aware that we have been discussing secure electronic communication systems in our consideration of other Home Office legislation such as the Crime (International Co-operation) Bill and the Extradition Bill and that it is a matter of some concern.

The Minister referred to Regulation 4 which provides safeguards in respect of the provision of a record of fingerprints. Paragraph (4) states:


    "This regulation shall not apply if the authorised person reasonably believes that the applicant is aged sixteen or over".

I am interested by the phrase "reasonably believes" and in how the person is to come to that reasonable belief. What kind of guidance will be given on how the decision regarding reasonable belief should be made, and by whom will it be given? What documentation is likely to be acceptable? I am sure that the Minister will understand that my concerns result from the fact that, as we know, there is a significant worldwide problem with the trafficking of children. We should always have that at the forefront of our minds in these matters.

I turn finally to the matter of costs. We are told in the Explanatory Notes that the cost of the pilot will be met from existing funds, but we are not given an estimate of the sum which will be swallowed up within the existing budget. What is the projected cost for what we are told is to include the deployment of equipment, the reconfiguration of offices and the additional staff that will be required?

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Within the context of those questions I certainly support the regulations.

Lord Avebury: My Lords, we also have no objection in principle to the use of biometric data for the purpose of curbing the use of false identities to evade immigration controls. There are just a couple of questions that I should like to add to those that have been put to the Minister by the noble Baroness, Lady Anelay.

The Minister has already explained why Sri Lanka has been chosen for the pilot study; he told your Lordships that it was because of the number of unfounded applications that came from persons living in Sri Lanka. However, there are many other countries with a much larger number of unfounded applications. Just glancing through the list of initial decisions on applications made in the first quarter of 2003, I see that, for example, Zimbabwe, Somalia, Iraq and the Federal Republic of Yugoslavia accounted for larger numbers of refused applications than Sri Lanka. I take it that the second reason that he gave, the collaboration of the Sri Lankan authorities, is really the determining factor. In those other countries it might have been either physically difficult to arrange for fingerprinting—obviously you could not very well do it in Baghdad in current conditions—or simply more difficult to secure the collaboration of the authorities. Perhaps the Minister will clarify that in his concluding remarks.

Secondly, what is the estimated number of additional staff and the total cost in the six months that the pilot study will last? Thirdly, would not any person who makes an application and is fingerprinted realise that he could not then make another application using a different identity without being detected? I do not quite see how that works. The explanatory memorandum says that the identification of applicants who use a false identity is likely to enable the return to Sri Lanka of people who have no right to be in the United Kingdom. It would be useful if the Minister could give an example of how that would operate in practice. What is the scenario by which a person is detected? If a person applies in a second identity, presumably the attempted deception would be picked up in Colombo, not in the United Kingdom. So the authorities in Colombo would pinpoint the attempted deception and there would not be any increase in the number of people who would be removed from the United Kingdom as a result of false identities being detected in the country of origin.

The fingerprinting of Sri Lankans is said to be a pilot exercise. Can the Minister give an undertaking that before it is extended to other countries a full report is published on the number of fingerprints taken, how many are matched with those held at Croydon, how many applicants are caught using false identities and the cost of the whole exercise in practice as opposed to what is predicted?

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Lord Evans of Temple Guiting: My Lords, I am very grateful to the noble Baroness, Lady Anelay, and to the noble Lord, Lord Avebury, for their questions which I shall attempt to answer. If I fail, I shall, of course, write to them.

The noble Baroness, Lady Anelay, mentioned the co-operation of the Sri Lankan Government. They were very co-operative. Noble Lords will note that I talked about Sri Lankans and all other nationals coming through Sri Lanka. If you are American and you apply in Colombo for a visa to come to Britain, you will have your fingerprints taken.

This is a pilot scheme. The future of identification lies with biometrics, whether it is iris, retina or fingerprint recognition. Many other countries are considering using this new technology as it develops.

This is simply a pilot scheme. Biometric data have great potential. We are exploring a variety of ways in which it can be realised. But the pilot in Colombo is just that—a pilot. We shall consider what benefits flow from the data, the practical aspects of its collection and the wider impact it has on the system once the pilot has finished. From that we shall determine what further use we can make of this new technology in the entrance clearing field.

I was asked about electronic transmission of data from Colombo to London. I can tell the noble Baroness that fingerprints will be gathered electronically. Data will be transferred electronically using the FCO's secure communications system.

The noble Baroness asked how we determine the age of a child, particularly at a time when there is a great deal of trafficking of children. That is an extremely good question. I do not have an immediate answer but I shall write to the noble Baroness and give her as much information as I can.

Baroness Anelay of St Johns: My Lords, I am very grateful to the noble Lord for that offer because naturally we shall discuss trafficking of children in other contexts. I am sure that whatever he says in his letter will be most helpful.

Lord Evans of Temple Guiting: My Lords, finally, the budget for costs is 1 million but we expect them to be well under that figure once the pilot is completed.

The noble Lord, Lord Avebury, asked why Sri Lanka, when many other countries have many more illegal applicants seeking entry into Britain. First, the Sri Lankan Government have been very co-operative. Secondly, there is evidence that nationals other than Sri Lankans are using Colombo as a port of entry into the UK. The other very significant reason, which I mentioned in my opening remarks, is that Colombo has the staff and facilities to encompass the pilot scheme.

I am afraid that I am not in a position to give any undertaking about the results of the pilot scheme, and I explained to the noble Baroness, Lady Anelay, that it is just that. Once we have the results, we will obviously consider them with great care. The underlying matter that must be highlighted is that, in the area of illegal

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entry into this country and many other countries, it is likely that biometrics will play an absolutely vital and central role in future.

On Question, Motion agreed to.

Asylum (Designated States) (No. 2) Order 2003

2.21 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin) rose to move, That the draft order laid before the House on 17th June be approved [23rd Report from the Joint Committee].

The noble Lord said: My Lords, this is the second order laid under the powers in Section 94 of the Nationality, Immigration and Asylum Act 2002. That section makes provision for a list of countries from which asylum or human rights claims are to be certified as clearly unfounded unless the Secretary of State is satisfied that they are not clearly unfounded. The effect of such a certificate is that a person must leave the United Kingdom before appealing the decision to refuse their claim, while still having an out-of-country right of appeal.

The powers have proved effective in reducing the number of unfounded claims. For the 10 EU accession states, which have been subject to the powers for nearly eight months, there has been a reduction in intake of between 80 per cent and 90 per cent compared with October 2002. For the seven countries added on 1st April, there are already signs of a significant decrease in applications, of upwards of 25 per cent. In addition, those refused are being removed quickly.

When we last discussed the issues at the end of March, I spoke briefly about why that matters in terms of our overall commitment to granting asylum to those who needed it, while seeking to protect the integrity of our asylum system and stopping it from being swamped by people who undoubtedly use it at times as a means of economic migration. We spoke in the House on a number of occasions during the passage of the then Bill on the part that the non-suspensive appeal process plays in that system.

So far, the evidence is that the system is working well. However, clearly the powers are important, and it is important that they are used appropriately. In my address in March, I indicated how we had sought to implement the powers in the Act progressively and, if anything, cautiously to try to ensure that the measures worked well and we were successful in stopping people making unfounded applications for asylum, while not denying legitimate claims a right and proper hearing.

Our evidence so far is that the gains that we have achieved in significantly reducing the number of asylum applicants from such countries—for example, the 10 accession states—has not been at the expense of the quality of decision-making of people who have made asylum claims from those countries.

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I want very briefly to remind the House of the process. There is a hearing and proper consideration of the applicant's case. It is not as happens in some other EU member states, where people are sometimes sent away at the border. The applicant is entitled to legal advice and legal aid as part of the process. Their case is considered by a specially trained caseworker and they have a right of appeal against their decision, albeit from outside the country, with legal aid, if they so wish to exercise that right. To ensure as much as one can the integrity of the decision-making process, a second pair of eyes considers the decision of the original caseworker. While the applicant is still in the country, he has the right, if he wishes, to make a judicial review application.

A further relevant factor has been that as a result of this process, we have been able to effect the removal of people whose cases were established to be unfounded under the Act. As the House will know, it is important that one has a fair decision-making process and that at the end of the process, those who are not found to qualify for asylum can be removed; otherwise, a perverse incentive is built into the system—even if one does not succeed in one's asylum case if one is not removed, one would still have been able to continue in the country.

As a consequence of what we believe is steady and impressive success of the non-suspensive appeal provisions, we have decided that this is a good time to make further additions to the list. As the House will know from a debate on the Bill and our previous discussion of the issue, for a country to be added the Secretary of State must be satisfied in two respects under the Act: first, that in general in that state there is no serious risk of persecution of persons entitled to reside in that state or part; and, secondly, that removal to that state or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the human rights convention.

In considering what states might be included in this second order, we have taken this legal test as the starting point. We have, as before, also taken account of other factors, such as the asylum grant rates, the outcome of appeals and the country information that we publish. We have not been looking to find a set of countries that have a common link, other than their suitability for inclusion in the order. On that basis, the seven states that we decided should be included in this draft order are Bangladesh, Bolivia, Brazil, Ecuador, South Africa, Sri Lanka and Ukraine. We are satisfied that those seven states are ones where there is in general no serious risk of persecution and to which removal would not in general breach the United Kingdom's ECHR obligations. The statistical evidence bears that out. In the first quarter of 2003, asylum grants rates on initial decisions from those countries were less than 2 per cent in all cases except for Bolivia, which was 6 per cent, based on a small number of decisions.

As with the seven states added by the first order—and, indeed, with the initial 10 EU accession states in the Act—it is not the case that those countries are totally safe for everyone. That is a test which few if any

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states could claim to meet. Inclusion on the list reflects a general level of safety, not a total absence of any mistreatment. It is for that reason that we continue to give every asylum claim from a resident of a designated country full consideration on its individual merits. The claim would not be refused or certified as clearly unfounded unless we were satisfied, after individual consideration, that the claim fell to be refused and certified.

Your Lordships will also be aware of the role that we have said that the advisory panel on country information will have in relation to the addition of countries to the designated list. As is clear from the amendment tabled by the noble Lord, Lord Goodhart, and as was clear when I prepared for my presentation on this matter, we indicated, when we discussed additions to the order at the end of March, that we intended to move very rapidly or progressively within a month towards a process of setting up the advisory panel. We have done that. We have written to a number of organisations inviting them to submit nominations for the advisory panel and we have had a good response, but we have not finalised the exact list as yet because one or two organisations indicated that they thought that there might be a suspicion of a conflict of interest and that they would therefore not wish to take a position on the panel. We understand that and are therefore in the process of writing to further organisations. It is our intention to have the advisory panel up and running in September.

Having said that, I do not find it a particularly comfortable position to be before the House yet again explaining why the panel has not as yet come fully into operation. I repeat what I believe I said at the end of March: that although I am no longer in the department, I will do my best to try to ensure that we meet the timetable because it is important to do so for the credibility of the Government.

We have been making progress in establishing the panel since we debated the previous order. We have invited a number of individuals and organisations to become members and we hope to finalise the initial membership shortly.

We had hoped, if possible, to have the benefits of any advice from the panel on the country information produced by the Home Office before bringing forward this draft order. However, given the success of the non-suspensive appeals procedures thus far, we were very keen to lay this order before the Summer Recess as that would enable us to make an immediate impact on the applications from the countries concerned rather than delaying until the autumn. I commend the order to the House.

Moved, That the draft order laid before the House on 17th June be approved [23rd Report from the Joint Committee].—(Lord Filkin.)

2.30 p.m.

Lord Goodhart rose to move, as an amendment to the above Motion, at end insert "but this House regrets that the order has been introduced before the establishment

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of an Advisory Panel on Country Information under Section 142 of the Nationality, Immigration and Asylum Act 2002".

The noble Lord said: My Lords, as the noble Lord, Lord Filkin, pointed out, the purpose of the order is to add a further seven countries to the white list in Section 94(4) of the Nationality, Immigration and Asylum Act 2002. The white list is, of course, a list of states in relation to which there is a presumption that a resident's claim to asylum is clearly unfounded. I accept that that presumption is rebuttable, but that is the presumption written into the Act.

Section 94(4) contains the names of the 10 candidate states which are due to join the European Union next year. In the debate on the Act, when it was a Bill in Parliament, we objected to the whole concept of the white list. But the white list is now law and we must accept that.

Under Section 94(5), the Home Secretary may, by order, add a state, or part of a state, to the white list if he is satisfied that in general there is in that state no serious risk of the persecution of residents and that the removal to that state of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the European Convention on Human Rights. Therefore, the test under Section 94(5) relates wholly to the conditions in the country from which the asylum seeker comes. It is no justification for adding a country to the list that the applicants include a significant number of people whose claims, when investigated, turn out to be unfounded.

As the Minister pointed out, Section 142, again, provides for the setting up of the Advisory Panel on Country Information, which will make recommendations based on country information, including, no doubt, issues of persecution and human rights.

By the previous order approved by your Lordships' House on 31st March, the Government added seven states to the list. Those seven were Albania, Bulgaria, Serbia, Jamaica, Macedonia, Moldova and Romania. At that time, it certainly seemed doubtful to us whether some of those states satisfied the requirements of Section 94(5)—in particular, Albania, Serbia, Jamaica and Moldova. Therefore, my noble friend Lord Dholakia moved an amendment in the same terms as the one that I set down for today.

I recognise of course that the setting up of the panel and the consideration of recommendations from it are not legal conditions that must be satisfied for the exercise of powers under Section 94(5). However, it is plain that they would be useful guidance and, indeed, that they have some legal significance.

If the decision of the Home Secretary to add a particular country to the list were challenged by judicial review on the ground that his decision was irrational, then advice by the panel that the country was, in fact, suitable for addition to the list would obviously strengthen the Home Secretary's hand. By contrast, if the panel said that the country was not suitable for inclusion in the list, then the Home Secretary would have difficulty in including that

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country and asylum seekers would be protected from what would be an unjustifiable presumption that their claims were unfounded.

Only three months later, we now have another list. In our view, that list is even worse than the previous one. What has happened in the past three months to convince the Home Secretary of the need to add those countries to the list without waiting for the advisory panel to be set up? If the panel is to be set up by September, why not wait until then?

In most cases, these countries are not appropriate countries for inclusion in the list. I need to look at them one by one. We are prepared to accept South Africa as suitable for inclusion on the list and, with a little hesitation, Bolivia. The others should not be there—or be there only in part. Many of these states have been subject to serious criticisms by Amnesty, or in the highly respected reports on human rights published by the US State Department.

Sri Lanka has undoubtedly shown considerable improvement during the past year and there have been peace talks between the government and the Tamil Tigers, and a cease-fire while those talks have taken place. But those talks are now stalled and while fighting has not yet resumed it plainly could at any time. Conditions are now acceptable in parts of Sri Lanka—those parts under the control of the government. However, I must refer to what the State Department said about the Tamil Tigers in its report on human rights in Sri Lanka for 2002. It stated:


    "The LTTE continued to commit serious human rights abuses. The LTTE reportedly committed several unlawful killings, and was responsible for disappearances, torture, arbitrary arrest, detentions and extortion. Through a campaign of intimidation, the LTTE continued to undermine the work of elected local government bodies in Jaffna. On occasion the LTTE prevented political and governmental activities from occurring in the north and east. The LTTE continue to control large sections of the north and east of the country. The LTTE denied those under its control the right to change their government, did not provide for fair trials, infringed on privacy rights, somewhat restricted freedom of movement, used child soldiers, and discriminated against ethnic and religious minorities".

On that basis, if Sri Lanka is to be included in the list, that inclusion should extend only to those parts of the south, centre and west of the island which are effectively under government control, and should not extend to those parts under the control of the Tamil Tigers.

Let me turn to Amnesty's comments on Brazil for 2002. It stated that,


    "Thousands of people were killed in confrontations with the police. Police were responsible for many killings in circumstances suggesting extrajudicial executions. Torture and ill treatment as methods of extortion continued to be widespread and systematic in police stations, prisons and juvenile detention centres. Human rights defenders continued to be intimidated, threatened, attacked and killed. Land and environmental activists, as well as indigenous people fighting for land rights, were also threatened, attacked and killed by police or those acting with the assent of the authorities".

Can Brazil be suitable for inclusion on the white list?

The State Department, in reports on the other three countries in the list of seven—Bangladesh, Ecuador and Ukraine—stated that the respective governments'

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human rights records remained poor. In the case of Ecuador, the report referred to credible reports of killings by police, security forces and semi-official entities. It referred to torture and mistreatment of detainees; arbitrary arrest and prolonged detention; violence and pervasive discrimination against women, indigenous people and Afro-Ecuadorians; and mob violence and vigilante killings. Can Ecuador be considered suitable for inclusion in the list?

In the case of Ukraine, the report referred to the torture and beating of prisoners; police abuse and harassment of racial minorities; harsh and life-threatening prison conditions; political interference in the judicial process; intimidation of journalists with authorities issuing instructions about events to cover or not to cover; and restriction on freedom of association and assembly. Can the Ukraine be considered suitable for inclusion on the list?

Finally, I come to Bangladesh. Let me read some paragraphs from the State Department's report on that country because they are very alarming indeed. I apologise for the fact that this may add a little length to my speech, but I think it must be done. The report states:


    "The Home Affairs Ministry controlled the police and paramilitary forces, which had primary responsibility for internal security. Police were often reluctant to pursue investigations against persons affiliated with the ruling party, and the Government frequently used the police for political purposes. There was widespread police corruption and lack of discipline. Security forces committed numerous serious human rights abuses and were rarely disciplined even for the most egregious actions . . . The Government's human rights record remained poor and it continued to commit serious human rights abuses. Security forces committed a number of extrajudicial killings, and deaths in custody more than doubled from 2001. Both major political parties often employed violence, causing deaths and numerous injuries. According to press reports, vigilante justice resulted in numerous killings. Police routinely used torture, beatings and other forms of abuse while interrogating suspects and frequently beat demonstrators. The Government rarely punished persons responsible for torture or unlawful deaths. Prison conditions were extremely poor.


    The Government continued to arrest and detain persons arbitrarily . . . The lower judiciary was subject to executive influence and suffered from corruption. A large judicial case backlog existed and lengthy pretrial detention was a problem. Police searched homes without warrants, and the Government forcibly relocated illegal squatter settlements. Virtually all journalists practised some self-censorship. Attacks on journalists and efforts to intimidate them by government officials, political party activists, and others increased. The Government limited freedom of assembly, particularly for political opponents, and on occasion, limited freedom of movement . . . Violence and discrimination against women remained serious problems. Abuse of children and child prostitution were problems. Societal discrimination against persons with disabilities, indigenous people, and religious minorities was a problem. The Government limited worker rights . . . and was ineffective in enforcing those workers' rights in place. Some domestic servants, including many children, worked in conditions that resembled servitude and many suffered abuse. Child labor and abuse of child workers remained widespread and were serious problems. Trafficking in women and children for the purpose of prostitution and at times for forced labor remained serious problems".

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By what conceivable standards can Bangladesh be considered suitable for inclusion in the white list?

The countries on this new list are not Slovenia, Estonia or Hungary; the kind of countries that were included in the list in Section 94(4) of the Act. The majority of countries on the new list are the countries where human rights are not respected; where governments use violence and intimidation and where organised abuse of women, children and minorities is rife.

This list is a disgrace and I believe that it brings shame on the Government to put it forward. I beg to move.

Moved, as an amendment to the Motion, at end insert "but this House regrets that the order has been introduced before the establishment of an Advisory Panel on Country Information under Section 142 of the Nationality, Immigration and Asylum Act 2002".—(Lord Goodhart.)

2.45 p.m.

Baroness Anelay of St Johns: My Lords, naturally I thank the Minister for his explanation of the Government's position on this order within the wider context, as he rightly put it, of our debates on the Nationality, Immigration and Asylum Act last year and subsequently the first list.

The Minister will recall that during the passage of that Bill, we on these Benches supported the principle of a safe country list but registered several serious concerns about the processes by which it would be operated. We began from the position of supporting amendments that had been suggested to us by the Refugee Council that there should be an independent documentation centre—amendments that were supported by the noble Lords, Lord Goodhart and Lord Dholakia.

That was an argument that we took through almost to—I was about to say—the death of the Bill. However, after ping-pong it lived to another day but in slightly changed form. We did not press our amendments on the independent documentation on the basis that the Government came forward with a proposal for the advisory panel and we accepted their assurances that that panel would do a sufficiently respectable job. That enabled us to withdraw our objections.

Today we support the Motion put forward by the noble Lord, Lord Goodhart. We are now concerned about the delay in the setting up of the advisory panel. I think that the wording of the noble Lord's Motion is both careful—as one would expect from such an able lawyer—and worded with some restraint.

We are told by the Minister that the advisory panel will, the Government hope, be up and running in September. Therefore, the noble Lord, Lord Goodhart, rightly asks the question: why not wait just that little bit longer? I do not think that the Minister has given a satisfactory response yet. I look forward to his answers to the detailed list of concerns expressed with regard to the individual countries by the noble Lord, Lord Goodhart. I have looked at some of—but by no

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means all—the information quoted by him and I am aware that outside organisations have concerns about various countries. For example, the Refugee Council briefing refers to Sri Lanka. It appends an analysis of the current human rights situation and says that,


    "it is unreasonable to conclude that persecution and human rights breaches are rare in Sri Lanka".

I know the Minister has said that each individual case will be looked at on its own merit. We want the Minister in his response to give a more cogent reason than so far for our accepting his arguments.

I return to my concern about this particular list as exposed by the noble Lord, Lord Goodhart, and at this specific time. If I were a more suspicious person, as a politician I might reach the conclusion—one I will not today as I shall suspend my suspicion—that the Government wish to pass this particular list before an advisory panel gives them advice that it is indeed an inappropriate list. I hope the Minister will be able to dissuade anyone who is of a more disbelieving mind that that is certainly not the case. However, I believe that the noble Lord, Lord Goodhart, has made a very convincing case today.


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