§ '.—(1) A member State is to be regarded for the purposes of subsection (2) as—
- (a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and
- (b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.
§ (2) Nothing in section 6 of the Asylum and Immigration Appeals Act 1993 (protection of claimants from deportation etc.) prevents a person who has made a claim for asylum ("the claimant") from being removed from the United Kingdom to a member State if—
- (a) the Secretary of State has certified that—
- (i) the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and
- (ii) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent;
- (b) the certificate has not been set aside on an appeal under section 51; and
- (c) the time for giving notice of such an appeal has expired and no appeal is pending.
§ (3) For the purposes of subsection (2)(c), an appeal is not to be regarded as pending if the Secretary of State has issued a certificate under section 58(2)(a) in relation to the allegation on which it is founded.
§ (4) "Standing arrangements" means arrangements in force as between member States for determining which state is responsible for considering applications for asylum.'.—[Mr. Straw.]
§ Brought up, and read the First time.
§ Question proposed [15 June], That the clause be read a Second time.3.42 pm
§ Question again proposed.
§ Madam Speaker
I remind the House that with this we are discussing the following: Government new clause 3—Removal of asylum claimants in other circumstances.
Government amendments Nos. 56 and 58 to 60.
The Home Secretary has the Floor.
§ The Secretary of State for the Home Department (Mr. Jack Straw)
Last night, just before midnight, I began to deal with the points made in the debate by my hon. Friends and by Opposition Members. As I had been on my feet for only about 30 seconds, it may be convenient for the House if I were to start again.
397 The hon. Members for Hertsmere (Mr. Clappison) and for Sheffield, Hallam (Mr. Allan), and some of my hon. Friends, had asked why it had not been possible to table new clause 2 earlier in the Bill's passage. As the House will be aware, sometimes, with the best will in the world, policy issues cannot be settled when a Bill is published, but have to be settled later.
I should make it clear that there should have been no surprise that the Government have proposed the policy in new clause 2. First, we flagged up the issue in the White Paper, which was published at the end of July 1998. Secondly, and perhaps more pertinently, on 22 March, when I gave my oral evidence to the Special Standing Committee, I referred specifically to the matter dealt with in the new clause.
I refer the House to the Official Report of that Special Standing Committee sitting, where I was asked about operation of the Dublin convention. I said:The convention is causing problems and raises a very substantial issue—that of the more effective transfer of asylum seekers who have come to this country and who, if they have travelled by land and sea will almost always have travelled through other EU countries".3.45 pm
I said that I was exploring the question of return with several EU Interior Ministers. I added, and this answers another point that was raised yesterday:I discussed that subject with Jean-Pierre Chevènement, the Minister of the Interior inI continued, and this goes directly to the gravamen of new clause 2:The associated issue is whether to adopt interpretations of our obligations under the 1951 convention that are similar to those adopted by, for example, Germany and France. We are examining such interpretations with care, because it does not make a huge amount of sense to use different, and in some cases, wider, definitions than those that apply in France and Germany."—[Official Report, Special Standing Committee, 22 March 1999; c. 468.]The matter that I flagged up on that occasion is wider than that which is contained within new clause 2. The new clause, by our statute, would concede to France, Germany and other member states in a similar position what we all know to be the margin of appreciation—their interpretation of the convention. To be frank, their interpretation of the convention is safe, and so too are the signatories and adherents to the 1951 convention on human rights. I hope that answer helps to deal with the points raised yesterday.
§ Mr. Richard Allan (Sheffield, Hallam)
For the record, the Home Secretary should be aware that, for the oral evidence-taking sittings and the written-evidence section of the Special Standing Committee, we asked all those giving evidence to stick to material that was contained within the Bill. We thought that that was sensible. It is obviously a learning exercise, and I have already told the Home Secretary that I think that the Special Standing Committee was a useful exercise. However, if we are to ask people to stick to the contents of the Bill, it is important that all matters are included within the Bill, rather than it being left to us to assume that people know about issues that have been mentioned in a White Paper.
§ Mr. Straw
That is a fair point. We established the Special Standing Committee because we are genuinely 398 committed to wider scrutiny of Bills whenever possible, and I have put on the record my belief, which the hon. Member for Hertsmere has acknowledged, that the process has worked well until now.
§ Mr. Straw
I acquit the hon. Gentleman of all responsibility for the mess up in the Opposition Whips' Office. He can no more be held accountable for the forces of darkness that inhabit that office than we can, and I have never laid that charge against him. He is reasonable; it is those in the shadows at the other end of the Opposition Front Bench and their inability to control some of their Back Benchers who are the cause of the chaos on the Opposition Benches. However, that is another story, and I shall not detain the House by elaborating on it.
I accept the comment made by hon. Member for Hallam about the Special Standing Committee process being a learning process. I flagged up the issues as best I could, but I accept that, when we have another Special Standing Committee, we should as far as possible give advance notice of all the issues that are being considered by the Government and that might emerge in amendments tabled at a later date.
Yesterday, my hon. Friend the Member for Walthamstow (Mr. Gerrard) asked for confirmation of the purpose of the new clause. Let me make it clear that the only change introduced by the new clause is in respect of transfers to member states under the Dublin convention. I propose that, in those cases, it should no longer be a requirement that I should certify that the receiving state will comply with its obligations under the 1951 convention; instead, the clause provides that that requirement shall be regarded as having been fulfilled. As I explained yesterday, the purpose of the change is to reduce the scope for unnecessary dispute over the safety of member states' asylum procedures in Dublin convention cases. There are no changes in respect of other returns, and it will continue to be a requirement in those cases that I certify that the receiving state will comply with the 1951 convention.
My hon. Friend also asked how many appeals there had been in cases where the applicant did not have an in-country right of appeal under the Asylum and Immigration Act 1996, but had instead what is known as a non-suspensive right of appeal. I understand that more than 100 such appeals have been lodged since the 1996 Act came into force. I have not had time to assemble detailed information on their outcomes. Several were withdrawn before they were heard. I am aware of two appeals in which the certificate was overturned.
My hon. Friend also asked about the enlargement of the European Union and whether the arrangements and the Dublin convention would apply to any applicant state admitted. The answer is yes. Applicant states cannot pick and choose which parts of the treaties they adhere to. It is fundamental to the process under which they accede to membership of the EU that they accede to all extant treaties and conventions, which includes the Dublin convention and any replacement of it that may come about under the Amsterdam treaty.
Applicant states must adhere not just to the texts, but to the practice. We are heavily involved in a huge amount of work, monitoring not just the economic performance 399 of applicant states but their performance in terms of justice and human rights. That process receives no publicity in this country, despite the best efforts of those of us who go to Brussels to sit on the Justice and Home Affairs Council. The country is aware that there are economic criteria. They are relatively easy to monitor because they relate to statistics. It is more difficult to monitor adherence to human rights, although 1 think that it is more important.
We are strongly committed to checking and analysing the state of the justice system in an applicant country and its subscription in practice to human rights. All the states concerned have signed up to the Council of Europe and the European convention on human rights, but we have to ensure that they follow it through in practice. We have had to go back to one applicant state—I shall not mention which—and tell it that its police service is not properly separated from its court service. Until it has a track record of an independent judiciary and a police service that is separated from the executive arm of the state, it cannot expect its application to be considered.
Alongside the monitoring process, we are promoting the twinning of member states with applicant states to support and help the applicants. That should be examined in great detail in Committee and on the Floor of the House from time to time. Such examination would assist us, the Governments of the applicant countries and many non-governmental organisations that are pushing to raise the level of human rights in those countries.
My final point—I say that in case any hon. Members want to raise any further points with me before I sit down—relates to the suggestion from the hon. Member for Hallam that the differences of approach in France and Germany might lead to people being returned to face serious harm, or what he called the wrong kind of persecution. The margin of appreciation—the fact that a person to whom we might grant asylum might not qualify in another member state, or the reverse, which has been true in the past—does not mean that the applicant will be returned to their country of origin to face serious human rights abuses. The argument relates principally to France and Germany, which have subsidiary provisions in their laws—which they observe—that prevent the removal of people who do not qualify for asylum but who face other threats to their life and liberty. Last year, France introduced a new concept of territorial asylum, which is designed to apply to those who do not qualify for asylum under the 1951 convention, but who qualify for protection under article 3 of the European convention on human rights.
§ Mr. Charles Wardle (Bexhill and Battle)
Just to clarify the point, is the Home Secretary saying that France and Germany have provisions that roughly parallel our exceptional leave to remain?
§ Mr. Straw
I think that in practice the answer is yes. I do not for a moment have knowledge of what they call their permission, but both countries have provisions under which, even though a case is not accepted on convention grounds, the applicant is none the less given a right to reside on other grounds, typically relating to article 3 of the ECHR.
I know that the House has been waiting to hear what the acronym OFPRA stands for. That is the office in France that deals with asylum seekers, and does it very 400 well. It stands for Office Français de Protection des Refugiés et Apatrides. For those whose French is not as good as mine, apatrides means stateless persons.
§ Mr. Straw
I am glad that we have got on to d'Hondt. I could go on at great length about d'Hondt. [HON. MEMBERS: "No."] I am sure that many people would have fled and claimed asylum had Victor d'Hondt been alive. The important thing to remember about him is that he was Belgian. On that note, I commend the new clause to the House.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.