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Baroness Scotland of Asthal moved Amendment No. 97:

"(3A) Subsection (3) is subject to section (Certificate in respect of asylum claimant)."

The noble Baroness said: My Lords, this group of amendments deals with the provisions in the Bill relating to the difficult situation when the two issues of extradition and asylum come together. As I explained in Grand Committee—and, indeed, as my honourable friends in another place explained—the Government are very aware of the fundamental principles involved in this complex scenario.

The asylum systems and procedures in this country have been subject to a certain amount of abuse, which the Government continue to make great efforts to reduce. It is also the case that the asylum system has

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been used ostensibly as a means to frustrate the extradition process. It is for this reason that, when the Bill was introduced some months ago, we included provisions specifically to deal with this issue.

Naturally, the aim was, and remains, that the asylum system should not be vulnerable to abuse with the intent to delay or frustrate lawful extradition. At the same time, the Government are also clear that a person who genuinely is in danger of persecution should not be prevented from having the opportunity to seek refuge.

However, immigration and asylum law has developed significantly since the Extradition Bill was introduced in another place in November last year. Provisions of the Nationality, Immigration and Asylum Act 2002 have now come into force, which have brought with them considerable change. These amendments are therefore designed to reflect the current situation and bring the provisions in line with the Government's wider strategy and objectives on asylum.

Amendments Nos. 98, 99, 248 and 249 bring Clauses 39 and 121 in line with the approach of Section 109 of the Nationality, Immigration and Asylum Act 2002. Section 109 makes provision for regulations to be made specifically about appeal rights against an immigration decision taken in respect of a person who has a right under any of the Community treaties. To put it simply, we are talking about the modification of appeal rights for immigration decisions relating to European Union and European Economic Area nationals.

The Extradition Bill needs to allow for the same approach, and this is what these amendments do. I should stress that no regulations could be made on this subject under the Extradition Bill; it is simply a question of reflecting the approach of the existing immigration legislation and allowing any related regulations to take effect.

The effect of Amendment No. 100 is to remove the existing provisions relating to certifying "clearly unfounded" asylum claims in Part 1 extradition cases. We do not believe that these are now appropriate in light of the other changes being made and the revised approach to the subject.

I know that this has been an issue of particular interest to the noble Lord, Lord Goodhart, as he explained in Grand Committee. I repeat what we have said at every stage on this subject—namely, that the Government remain committed to their obligations under the refugee convention and to the fundamental right of the individual to seek protection where and when it is necessary.

Amendments Nos. 97 and 102 relate to a person claiming asylum in respect of a third country. Your Lordships will notice that this applies only in Part 1 cases. Therefore, this would apply where a non-EU national claims asylum, after a Part 1 warrant has been received for his extradition, in respect of his country of origin. The effect of this is that a pending asylum claim

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will not bar extradition where the country requesting the person's extradition has responsibility for that person's asylum claim and refugee status.

This is commonplace in existing immigration and asylum legislation and our agreements with other member states. This approach reflects Sections 11 and 12 of the Immigration and Asylum Act 1999, as amended by Section 80 of the NIA Act 2002.

Amendments Nos. 250 and 310, in conjunction with Amendment No. 100, are purely drafting changes and remove interpretative provisions currently repeated in both Part 1 and Part 2. In their place a single interpretative provision is inserted in Part 5 of the Bill.

Amendments Nos. 291, 292, 326 and 327 remove the existing provisions relating to new appeals procedures in the situation where extradition and asylum meet. We believe that this system is no longer appropriate, as I explained earlier, in view of the Government's wider strategy on immigration and asylum. We believe that it is preferable to adapt the existing immigration and asylum appeals processes in order to reflect the traditional roles of the relevant appellate authorities.

I am grateful to the noble Earl, Lord Mar and Kellie, for tabling Amendments Nos. 290A, 290B and 291A to 291G in regard to these provisions. However, if your Lordships agree to the removal of Clauses 188 and 189 it will render those amendments otiose.

These amendments represent a positive revision of the provisions originally included in the Bill. The Government have taken great steps, both in legislation and procedure, to tackle abuse of the asylum system while maintaining protection for those who need it. We have made it clear that we intend to deal robustly with spurious or unfounded asylum claims. This applies whether the intention of the claim is general abuse of the asylum system or whether it is specifically to delay or frustrate extradition.

I know that these are issues in which others are interested and I thought it right to take some little time to explain the Government's reasoning for the amendments. I beg to move.

5.45 p.m.

The Earl of Mar and Kellie: My Lords, as trailed by the noble Baroness, my Amendment No. 290A is in this group. This amendment, which was inspired by the Law Society of Scotland, seeks to ensure that the correct Scottish court is named in the Bill when referring to an appeal against rejection of an asylum claim in Scotland.

In Clause 212(8), the Bill refers to the "High Court" as being the "High Court of Justiciary". However, in Clause 188(4), the Bill states that a person will have a right of appeal to the "High Court". In the Scottish context, this would mean the High Court of Justiciary—an obviously criminal court which does not deal with civil matters. The correct and corresponding Scottish court would be the Court of Session.

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In support of this, Section 103 of the Nationality, Immigration and Asylum Act 2002 places immigration appeals with the Court of Session. The amendment would ensure consistency and identify the Court of Session as the correct court in Scotland for an appeal.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 98 to 100:

    Page 19, line 34, at end insert—

"(za) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State's decision on the claim;"
Page 19, line 36, after "if" insert "there is such a right but"

    Page 20, line 5, leave out subsections (9) to (11).

On Question, amendments agreed to.

[Amendment No. 101 not moved.]

Baroness Scotland of Asthal moved Amendment No. 102:

    After Clause 39, insert the following new clause—

(1) Section 39(3) does not apply in relation to a person if the Secretary of State has certified that the conditions in subsection (2) or the conditions in subsection (3) are satisfied in relation to him.
(2) The conditions are that—
(a) the category 1 territory to which the person's extradition has been ordered has accepted that, under standing arrangements, it is the responsible State in relation to the person's asylum claim;
(b) in the opinion of the Secretary of State, the person is not a national or citizen of the territory.
(3) The conditions are that, in the opinion of the Secretary of State—
(a) the person is not a national or citizen of the category 1 territory to which his extradition has been ordered;
(b) the person's life and liberty would not be threatened in that territory by reason of his race, religion, nationality, political opinion or membership of a particular social group;
(c) the government of the territory would not send the person to another country otherwise than in accordance with the Refugee Convention.
(4) In this section—
"the Refugee Convention" has the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33);
"standing arrangements" means arrangements in force between the United Kingdom and the category 1 territory for determining which State is responsible for considering applications for asylum."

On Question, amendment agreed to.

Clause 40 [Withdrawal of warrant before extradition]:

Baroness Anelay of St Johns moved Amendment No. 103:

    Page 20, line 24, at beginning insert "Where this section applies"

The noble Baroness said: My Lords, in moving Amendment No. 103, I shall speak also to Amendment No. 110. I can be brief.

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The amendments pick up on a suggestion made by my noble and learned friend Lord Mayhew when we were discussing in Grand Committee the means by which a defendant would be informed of the withdrawal of a warrant for his arrest under Clause 40. My noble and learned friend drew the Committee's attention to the fact that the drafting of Clause 40(3) is somewhat bald. Subsection (1) sets out the circumstances under which the clause applies—that is, when, at any time during the relevant period, the designated authority withdraws its Part 1 warrant—and subsection (2) goes on to define the relevant period. All that subsection (3) states is that,

    "The judge must order the person's discharge".

My noble and learned friend suggested that,

    "it would be more elegant and appropriate if those words were to be preceded by the words 'where this section applies'".—[Official Report, 1/7/03; col. GC 175.]

We seek to apply that rationale to Clause 43(4) as well. We hope that the Minister will accept our constructive criticism of the drafting. I beg to move.

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