§ 11.8 a.m.
§ Lord Scott of Foscote
rose to move, That this House takes note of the report of the European Union Committee, Asylum Applications—Who Decides? (19th Report, HL Paper 100).
The noble and learned Lord said: My Lords, I am grateful to your Lordships for arranging the opportunity to debate these two reports. Both relate to asylum applicants. Asylum applicants present this country, and all other countries in the European Union, with important and difficult problems. The applicants include many unfortunate and disadvantaged people fleeing from persecution and 424 oppression in their own countries, and hoping to find safe refuge in the European Union or in this country in particular.
Obvious problems will arise if there is a serious imbalance across the European Union in the treatment afforded to asylum applicants by different member states. Most asylum applicants will naturally seek asylum, and make their application, in the member state in which they expect to receive the most favourable treatment. I believe that everyone would agree that it would be in breach of obligations under the Geneva Convention for any member state to attempt, by harsh treatment of asylum applicants, to discourage them from making their application in that member state and encourage them to go elsewhere for sanctuary.
That dilemma led the Tampere European Council in 1999 to agree that member states should work towards establishing a common asylum system across the European Union which, once established, would prevent asylum seekers shopping between member states. The Council proposed that there should be a two-stage process. The first stage should consist of four elements.
First, there should be agreement on the establishing of rules to determine which asylum applicants were refugees for Geneva Convention purposes, in particular, as well as subsidiary protection purposes. Secondly, there should be the establishment of minimum—I stress minimum because it may not be entirely satisfactory to leave the matter there—standards on procedures for the granting or withdrawing of refugee status. Thirdly, minimum standards of reception conditions that applicants could expect to receive during the time that their application was being processed should be established. Finally, there should be rules to determine which of the member states take responsibility for dealing with a particular application.
The requirement for such rules was particularly relevant in view of the developing practice of some applicants making multiple applications in a number of member states—sometimes simultaneously and sometimes successively.
The proposed measures for dealing with those four elements have emerged from Brussels in a somewhat illogical order. First to emerge was the procedures directive. That was the subject of a report from the European Union Select Committee and was debated in this House during the first half of 2001.
The second measure was a proposed reception conditions directive. That was the subject of a report from the Select Committee and was debated in this House earlier this year. The third proposed measure was directed at the problem of deciding which state should take responsibility. That led to one of the reports which is being debated today. The final measure, which logically might have been expected to be the first, was for determining who was to be treated as a refugee. That measure was the subject of the last of the reports of the Select Committee, which is the second of the reports being debated today.
425 The Who Decides? report was set down for debate before the House some time in May. Tentative dates were fixed and had to be abandoned. By the time a date was fixed, it had been overtaken by the fourth report. Therefore, I hope that your Lordships will agree that it was convenient to bring the two reports together and debate both at the same time rather than having two debates on two different aspects of the asylum measures within a short time.
The lapse of time since the first, second and third reports were written has led inevitably to their being no longer entirely up to date. The procedures directive, the first text to be the subject of examination, has been sent back to the Commission to be rewritten. I am afraid I do not know the reason why it has been sent back or which parts of it are to be rewritten, but that will emerge in due course.
The reception conditions directive, which was debated earlier this year, has still not yet been finally approved by the Council. A "general approach" agreement on the reception conditions directive was reached in May, but my understanding is that some member states still have reservations about it. It has therefore not been finally agreed.
The proposed "Who Decides?" directive is still being discussed by the relevant Council working group. It has been made a priority by the Danish presidency. In a helpful letter of 25th October to the committee, the noble Lord, Lord Filkin, explained that a number of member states were still expressing strong opposition to some aspects of the "Who Decides?" proposal. How they will be finally resolved is not yet certain.
The status directive, too, is still in a state that is far from settled. The European Council at Seville set a timetable of June 2003 for final agreement on the four measures. In view of what has happened with regard to the directives, whether the timetable will be kept must be open to doubt. Perhaps the Minister can tell us about that.
It seems to me, therefore, that what I should do for the purposes of today's debate is to draw attention to some of the features of the proposals which are the subject matter of the two reports that seem to me—it is a subjective choice—to be the most important for your Lordships to reflect upon and for the Minister to comment on. Of course, I recognise that the content of the measures in question is still far from final and does not represent the last word.
I shall deal first with the defining refugee status proposal. A directive leading to a common definition of who is entitled to be regarded in the European Union as a Geneva Convention refugee is of course very much to be welcomed. It is, however, perhaps a weakness of the definition that it defines Geneva Convention refugees in such a manner as to confine the term to persons outside the European Union who are seeking asylum within the Union. The definition serves to exclude anyone in a member state who is seeking asylum in another member state.
426 Such a limitation is not necessarily consistent with the Geneva Convention, which has no such limitation. The Government, when asked about that anomaly, correctly pointed out that every member state of the Union is a signatory to the convention—and for that matter to the ECHR—and that anyway a citizen of a member state has the right to go to live in some other member state and does not need to make an application for asylum in order to have that right.
Those are valid points but I am not sure that they entirely meet the concerns that the narrowness of the definition presents. Let us take the Roma, for example. Members of the Roma community from eastern European countries have in the past formed a fair percentage of applicants for asylum in this country. Some of those applications have been accepted. Some of the eastern European countries are applicant countries which, we understand, will soon become member states in the European Union and one must wonder what will be the position of the Roma applicant then. Although a particular country may be a signatory to the Geneva Convention or the ECHR, that is not a guarantee that the country in question may not on occasion from time to time be in breach of its convention obligations.
It may still be necessary from time to time for individuals in such a state to seek asylum in another. Those individuals may be just as much in need of assistance of the kind that the reception conditions directive requires to be provided as are asylum applicants from outside the EU. I wonder whether the Minister can indicate the manner in which such individuals will be treated once enlargement has taken place.
One of the key features of the status directive is that it addresses and attempts to resolve differences that have grown up among different EU signatories to the Geneva Convention on how one should approach the status of an individual who in his home country is suffering persecution not from the state but from some non-state actor against whose persecution the state is, for whatever reason, either unable or unwilling to protect him. Some countries in the European Union have taken the view that persecution for Geneva Convention purposes means persecution by the state, and that individuals being persecuted by non-state actors, and looking to the state without a veil for protection, do not qualify.
The courts in this country have firmly stated the view that this is a wrong interpretation of the Geneva Convention, as, indeed, have the majority of signatories to the convention. It is that approach that the directive adopts. If the directive becomes final in its present form, it will iron out the previous differences in favour of the view adopted by this country in conjunction with the majority of signatories.
Whatever future discussions there may be in negotiations before this directive becomes final, I hope that this aspect of the directive will not be weakened and altered. It is extremely important that those who face persecution from which their own country cannot protect them should be able within the European Union to claim Geneva Convention refugee status.
427 Another side of the non-state actor coin is that sometimes the state where the persecution from non-state actors is taking place (although it cannot stop or protect against the persecution in the area where it is happening) can allow the victim some protection elsewhere in the country in question. This has previously presented difficulties in regard to the extent to which internal relocation possibilities are a sufficient answer to a claim for Geneva Convention refugee status. This, too, is addressed by the directive in the hope of producing a common approach. The approach proposed is that if the internal relocation will afford safe protection then, assuming that it is reasonable for the individual to relocate in the area in question, he or she will not be able to claim Geneva Convention status.
The directive also addresses the question of who is entitled to claim what is called "subsidiary protection status"—that is to say, protection not under the Geneva Convention but under other international instruments such as the European Convention on Human Rights or the Convention against Torture. In the view of the Select Committee, attempts by the directive to deal with this problem as well, with a common definition and a common approach to those entitled to claim subsidiary protection status, is also very much to be welcomed.
But it is an oddity that the status directive is the only one of the four measures that deals with the question of subsidiary protection. That it does so is to be welcomed; that the other three do not is to be regretted. It is also somewhat illogical. If an individual is entitled to subsidiary protection— and the status directive sets the standards for deciding on that—then the individual ought to be entitled to the same minimum procedures for dealing with his case and the same reception conditions as Geneva Convention refugees. But the measures dealing with those matters do not cover other than Geneva Convention refugees. The Government may well have faced political negotiating difficulties in this regard, but I should emphasise that in the view of the Select Committee the distinctions are illogical. Sooner or later—and the sooner the better—they will have to be dealt with.
Another feature of the directive addresses the issue of the approach to be taken when an asylum applicant, before his application has been resolved and is still in the pipeline, engages in activities in the host country—say, in this country—which are of a nature thoroughly to antagonise his home country and make him liable to serious risk if he returns there—such serious risk perhaps not having been present for him until his engagement in these activities in the new country to which he has come.
It is suggested in the directive that in a case where it can be shown that the risk has been "manufactured" for the purpose of assisting or confirming entitlement to asylum, the asylum status should be rejected. The Select Committee has serious reservations about this part of the directive. It is very difficult to look into a person's motives in deciding whether or not the fear of persecution has been, in the sense of the relevant article, manufactured.
428 Let us take the case of an Iraqi asylum seeker, heavily opposed to the Saddam regime, who prudently has not raised his head above the parapet in his home country, but once out announces as vociferously as he can all his objections to the inhumanity and human rights abuses of the regime. It would be quite unfair to categorise such a person as having manufactured the fear of the persecution that he would expect to suffer if he were to return to his home country. This article in the directive needs to be carefully watched. It should never be applied in cases where, whatever the suspicion of possible manufacture, the individual does as a fact face serious harm if he returns. It is the fact of his facing serious harm and persecution that should be the qualification for refugee status.
There are many other aspects of the directive to which I could draw attention, but those are the ones which seem to me to be the most important. I cannot refer to all the significant articles, but they are all dealt with in the report. I commend the report to your Lordships.
The Who Decides? report takes the form of a proposed regulation. When it comes into effect, it will replace the Dublin convention, a treaty agreed between all the then member states many years ago. It took time to ratify but has been in force for some time. As a treaty—and no more than a treaty—between member states, it did not form part of substantive European law. It also had a number of shortcomings, which emerged after it was agreed. The proposed regulation, by contrast, will, when it becomes final, be part of the corpus of European law.
The regulation builds upon the Dublin convention—it has become known, in short, as "Dublin II"—and seeks to meet some of the perceived shortcomings of the convention. The need for some rules, accepted across the Union, to decide which country should take responsibility for a particular asylum application is plain.
A feature has regrettably grown up of some asylum applicants making multiple applications, sometimes successively—you fail in one country and you then go and try again in another, or you make them at the same time and try to run them together. The new Eurodac fingerprinting system makes it possible now—it was not possible when the Dublin convention was first introduced—to identify applicants who are behaving in this way. On making an asylum application, they are fingerprinted, and their fingerprints are put on a computer so that anyone in the European Union can see who it is who has made an application and in which country it has been made. If another application is made elsewhere, then that is known.
In considering the likely impact of Dublin II, it is relevant to bear in mind the statistical evaluation of the Dublin convention made by the Home Office in 1999. The figures are of interest. In that calendar year, in the United Kingdom there were 46,000-odd applications. I understand that the figure is considerably more now, but that was the figure in 1999. Under the Dublin convention, the UK authorities sought to transfer just under 2,500 of those to other member states. That 429 represents some 5.4 per cent of the total. Of the 2,500-odd, the request for transfer of the matter to be dealt with by another member state was accepted in 1,824 cases, about 4 per cent of the total number of applications. But the number of applicants actually transferred to the responsible member state was only 876; that is, about 1.9 per cent of the total number of applicants.
The figures in relation to other European countries that received a considerable number of asylum applications are not dissimilar. The Netherlands received 45,000-odd applications. It requested transfer in respect of 5,000-odd. Its transfer requests were accepted by other member states in respect of 5,000-odd but only 1,700-odd were actually transferred, 3.8 per cent of the total. The greatest number of asylum applications in 1999 was received by Germany: 98,644 in all. But after the transfer provisions had been applied, only 809 were actually transferred to other member states pursuant to the Dublin convention. That is less than 1 per cent.
These figures raise the serious question of whether the elaborate Dublin rules—and the Dublin II rules will be just as elaborate—are worth the considerable time and expense that their implementation must involve. It is certainly the case that some rules are needed. Everyone agrees that the first priority in considering what member state should take responsibility is that families should, if possible, be kept together. If a member of the family of an asylum seeker is in a particular member state, that is reason for the view that that member state should take control—assuming, of course, that the family member wants it to take control. Sometimes, people do not want to live with other members of their family, but generally they do. Both the convention and Dublin II proceed on that footing.
Subject to the family criterion, the member state required to take responsibility will be one where some kind of residence permit has already been issued. Next, if a member state has issued a visa to the individual, it can be required to take responsibility. Then come provisions of particular relevance, for example, to Sangatte. If the presence of the applicant on the territory of a member state has been knowingly tolerated for two months, that member state can be required to take responsibility. In any event, if the applicant has been in the territory of the member state for six months, tolerated or not, that member state can be required to take the application. In the final resort, the member state into whose territory the applicant first entered the European Union can be required to take responsibility. The application of these principles takes time and expense.
Is it worth it? The Commission expressed the view, and the Select Committee agreed, that there would be much to be said for a simple system under which, first, family unity represented the criterion, but subject to that applicants were left to apply in the place of their choice, with the Eurodac fingerprinting system preventing successive multiple applications.
430 We put the point to the Government. The Government did not agree. They said—understandably—that "applicant's choice" might in many cases turn out to be not "applicant's choice" at all but "trafficker's choice". Of course, one sees that. None the less, there must be some pragmatic reason for engaging in the time and expense that the application of the Dublin rules represents. Unless there is to be a better return under the new system than there was under the old one, government will need to return to the question of whether the time and expense are warranted.
There are one or two other points to mention on the Who Decides? proposal. The Select Committee regrets that appeals by asylum applicants against a decision to transfer him or her to some other responsible member state—there may well be such appeals—will not lead to a suspension of transfer pending the appeal. The directive provides that the individual will be transferred, that the appeal will continue, presumably in his absence from this country, and that, if it succeeds, he will be brought back again. In general, it seemed to the Select Committee that appeals should have suspensive effect. However, the Government do not agree.
Secondly, there is a potential problem of member states disagreeing as to which state is responsible. Since the proposed regulation will be part of the corpus of European law, disputes of that character will in the end have to be determined by the European Court of Justice at Luxembourg. Anyone who has become involved in Luxembourg litigation will know that it takes a long time. It may therefore take a long time for the issue of the responsible member state to be determined. It is important that the Government should endeavour to work out with the judicial authorities in Luxembourg some form of fast-track procedure for dealing with disputes about responsibility that will arise as and when the regulation becomes final.
In any event, for many of the reasons to which I have tried to draw attention, I doubt whether Dublin II will be the last word in the measures necessary within the European Union to determine who decides a particular application. The report draws attention to the issues. I therefore commend it to the House. I beg to move.
Moved, That this House takes note of the report of the European Union Committee, Asylum Applications—Who Decides? (19th Report, HL Paper 100).—(Lord Scott of Foscote.)
§ 11.37 a.m.
§ Lord Thomson of Monifieth
My Lords, I speak as one of the most recent members of Sub-Committee E, which is chaired by the noble and learned Lord, Lord Scott. He has given a masterly survey of the issues raised by the two reports before the House, which are linked with earlier reports in this field. Perhaps I may begin with a tribute to the professional official team of Sub-Committee E, Dr Kerse and his team, for the way in which they provide background to its members. 431 I am conscious of being a layman among lawyers. However, I have the advantage that, after a long life in this House and in the other place, I like listening to lawyers; so I find my task on the sub-committee a very interesting one.
M y particular interest, as a very ancient former European Commissioner, is that Britain should contribute constructively to a credible and creditable common European asylum system. Sub-Committee E and the Select Committee itself have plenty of experience. An attempt at any degree of harmonisation of the traditional legal practices of member states is a painstaking task demanding much patience. The account given by the noble and learned Lord, Lord Scott, of Dublin I and Dublin II is a good example. Harmonisation of this kind is an area of European Union policy where at times it is too easy for us in this country to feel that miscarriages of justice begin at Calais; or for the French to feel that the purity of Code Napoleéon is polluted by the Anglo-Saxon system of common law the moment a case reaches Dover. Therefore, in dealing with the two draft directives that we are debating the Select Committee has been conscious of the need to consider each set of proposals in the context of the complete asylum package that is now being mounted. As the noble and learned Lord told us, we have already reported on the directive on procedures and the directive on reception conditions. All the pieces of the jigsaw are now beginning to appear on the table. The picture is becoming clearer.
Having looked at Asylum Applications—Who Decides?, I hope that the Government will vigorously pursue the questions relating to subsidiary protection beyond the Geneva Convention, particularly where it relates to family reunification. I hope, too, that now that enlargement is gathering momentum, serious practical efforts will be made by the current leading member states of the European Union to equip the candidate countries to fulfil their responsibilities on the new external frontiers of the Union. The second report, House of Lords Paper 156, shows that this directive is the only one so far that seeks to deal decisively with subsidiary protection. That has implications for the earlier directives in the package. Ideally, the scope of all the other directives should be extended to cover everyone in need of protection.
Our report recommends strongly that the moral dilemma of the so-called self-created refugee that the noble and learned Lord, Lord Scott, described so vividly should be faced. To do that, the Government must simply persuade the member states, when finalising matters, that article 8(2) should be deleted. The noble and learned Lord made a devastating and unanswerable case. However, I understand that tidy-minded bureaucrats get irritated by what they regard as the self-created refugee.
The Select Committee report praises the Commission for confronting squarely the extension of the definition of persecution beyond that of the state to include so-called non-state actors. It has done so despite the difficulty that it creates for legal traditions in some major member states. According to the 432 organisation Justice in this country, for whose activities I have much respect, the directive containing this provision could be,a rare example of the harmonisation process setting standards that do not merely legitimise the status quo but instead force some states to raise their game".
I hope that the Government will be able to prevent any opt-out of article 9(1) of the directive. In general, the directive is positive about harmonisation between the Geneva Convention refugees and the beneficiaries of subsidiary protection. But I urge the Government to push for the same rights for everyone entitled to international protection.
The tidal wave of humanity—asylum seekers, legal and illegal, and economic migrants—that beats against the frontiers of the European Union is both a tribute to the quality of society in the countries of western Europe and an immense humanitarian challenge. It demands a great deal of give and take and mutual tolerance among the policy-makers of the member states and among their citizens.
§ 11.44 a.m.
§ Lord Clinton-Davis
My Lords, I declare an interest: I am a former chairman of the Refugee Council, and. like the noble Lord, Lord Thomson of Monifieth, I served in the European Commission. I am heartened that the noble Lord enjoys the dubious pleasure of listening to lawyers. Present at this debate are a real lawyer, the noble and learned Lord, Lord Scott, and myself, a mere solicitor.
The European Commission has a good overall record on refugees. During the time I had the honour to serve in the Commission, it was positive in its approach. I dare say that the same was true of the former Commission in which the noble Lord, Lord Thomson, served with great distinction.
The House owes the noble and learned Lord, Lord Scott of Foscote, much appreciation for the manner in which he chaired the committee and for his speech today. The reports and recommendations being debated have been considered carefully. It is a pity that the Government, and, to a greater extent, former governments, bypassed the recommendations of previous committees. They bypassed them not only in their relationship with Parliament, but, so far as we can ascertain, in their negotiations in the European Council. I hope that that will not be the fate of these reports.
The real difficulty is that member states prefer not to have to amend their own domestic legislation; they prefer the easy way, which, unfortunately, has also become the prescribed way. I shall listen carefully to my noble friend's response, but I am afraid that an apologia for the past and the present will be his message. Still, one lives in hope. He is a friend of mine, and he has other virtues. During the many asylum debates in the House, he has been mostly positive. I make many criticisms on this issue, but I am restrained in my criticism of him.
On the report entitled Asylum Applications—Who Decides?, the House of Lords European Union Committee has had the benefit of some 70 NGOs 433 dealing with refugees in 28 countries as part of the European Council on Refugees and Exiles (ECRE). The council is chaired by the chief executive of the Refugee Council, Nick Hardwick. The ECRE and most NGOs concluded that the Dublin convention was irredeemably and hopelessly mistaken. Its basic belief is that the EU member state that performed the most significant part in permitting an asylum seeker to come into the EU should be responsible for the asylum claim. I regret that Dublin II is based on the same flawed thinking.
It follows that there has to be another route. That is the view of the ECRE. My view is similar to that set out in paragraph 110, which I shall not weary the House by repeating.
What credence do the Government attach to that scenario? How, if at all, has it been represented in debates within the European Council? How does it bear on Sangatte? That issue was raised by the noble and learned Lord, Lord Scott. Is there any real possibility of a solution affecting such situations unless the EU determines a way of sharing responsibility for Europe's asylum seekers that all member states regard as just and at the same time takes into account the ties that asylum seekers have with specific countries?
Secondly, have my noble friend and others paid any heed to paragraph 4 of the preamble which states that the criteria should be fair to member states and asylum seekers? Is that so? Is there any solidarity between member states of the EU on that issue? By placing an unequal responsibility on member states with long external borders, the principle of solidarity between member states seems to have been infringed. The refugees would also suffer unreasonably if that approach were pursued.
As the ECRE has persuasively argued, the linking of responsibility for entry controls and the determination of who is a refugee enables—indeed, encourages—EU member states to refoule asylum seekers illegally at their land and sea borders. There is the additional factor that EU member states export enforcement measures beyond the EU by sending immigration officials overseas to enable them to enforce border controls extra-territorially. They also impose sanctions on carriers.
The difficulty is that refugees are compelled to face persecution in their country of origin or resort to even more dangerous practices, risking their lives, to avoid controls.
I shall say a few words about the second report, Defining refugee status and those in need of international protection. It is a matter of regret that when Spain became president of the EC it chose to prioritise negotiations on minimum standards on reception when it had the opportunity to focus on what is set out in the explanatory memorandum—a common understanding of who qualifies for international protection under the refugee convention and an EU-wide complementary protection scheme. Is there real hope that, in the light of the rather 434 mysterious Council negotiations, the enlightened self interest to which reference is made will persuade the Government to oppose the compromises that have diluted other proposals in the asylum package?
My view, and that of the Refugee Council, is that a level playing field in refugee protection in the EU and beyond in Europe extends much further than the provisions of Dublin I and II, as currently drafted.
I have spoken for long enough, although there are many provisions in the report on which I would like to comment. I conclude as I began by thanking the noble and learned Lord, Lord Scott, and his committee for putting before the House today a sensible set of recommendations, which the House would do well to consider favourably.
§ 11.56 a.m.
§ Baroness Ludford
My Lords, it is of the highest importance that the European Union sticks to its promise of three years ago at Tampere of full commitment to the obligations of the Geneva Convention relating to the Status of Refugees and to have a common asylum system based on the full and inclusive application of that convention. There is no justification for us not to stick to those obligations. At 380,000, applications in the European Union were down 50 per cent last year on a decade ago. Since 1999, member states have been painfully slow in their rate of production of agreement on the package of proposals put forward in good time by the European Commission. I pay tribute to the Commission for its expertise and general good sense.
Member states have agreed only the Eurodac measure, which is not yet in operation, the European refugee fund and the temporary protection directive. The core four draft laws, on procedures, reception conditions, refugee qualification and allocation of responsibility—Dublin II regulation—have lagged behind, as has the family reunification directive, which should not be beyond the capabilities of the Council to agree.
There was much publicity when the reception conditions directive was said to have been agreed in April. The hype appears to have been a little premature, because that understanding has still not been turned into a legal text. Instead of really focusing on those essential building blocks for a common policy on refugees, member states have spent most of their energy on the subject of illegal immigration. Obviously, that subject merits serious concern and attention, but it should not be to the exclusion of the other two arms of the Tampere agenda—the common asylum policy and a policy on legal migration.
Even within the topic of illegal presence, the spotlight has been on illegal entry. As was reiterated by the Director-General of the Justice and Home Affairs Directorate-General, Adrian Fortescue, in evidence to the committee, the real problem is overstaying of tourist visas or short-term work permits. This is not the image of scrounging asylum seekers portrayed in the media, with the active connivance of some politicians.
435 The European Union needs to get its priorities right in reaching agreement on the system which will bring some coherence as well as honour into European refugee policy. All these four proposals are meant to be agreed by May 2004, but at the current rate of slippage that will be a challenge, although I know that the Liberal-led Danish presidency is trying to put impetus behind them.
The United Kingdom is on the back foot in getting its view to prevail in Brussels because it is half in, half out of the common policies on immigration, asylum and borders. Our formal opt-out and being outside Schengen, whatever the stated justification for that, weaken the UK's influence in the overall debate.
Although we are opting into all the individual measures in he asylum package, it cannot strengthen our hand—for instance, in persuading others to agree the "tolerated illegal presence" clause of the Dublin II regulation—that we are in this halfway position. As the European Parliament's rapporteur on the directive on rights for long-term legally resident foreign nationals, I particularly regret that the UK is declining to opt into this proposal. As it would cover refugees, it does link into the asylum package, and it leaves approximately 1.5 million people resident in the UK who will not enjoy those rights once they are agreed, including the right to move to another member state.
As European Liberal Democrat spokesperson on justice and home affairs, I have been closely involved with the passage of all these measures through the Citizens' Rights Committee in the European Parliament. Of course, we only have the right to be consulted and then, I am afraid, largely ignored by the Council. If we had co-decision such that the European Parliament was joint and equal legislator with the Council, we would in my humble opinion have better as well as swifter legislation on immigration and asylum, not least because our thinking reflects much of what your Lordships' committee is saying in these excellent reports.
The Council does, of course, work largely in secrecy, although it is a legislature. We have too little information on its debates. It is unsatisfactory that it operates in a diplomatic environment as if it were the United Nations Security Council.
I turn to the Dublin II regulation. The noble and learned Lord, Lord Scott, highlighted the fact that only 4 per cent of applications are identified as falling within the scope of the transferred terms, fewer than half of which are actually transferred. So it is a bit of a sledgehammer to crack a nut. The question is whether it is a necessary sledgehammer. Although something like the Dublin regulation is needed as part of the package, the allocation of responsibility cannot work without the harmonisation of substantive law. I therefore believe that your Lordships are right in saying that this belongs at the end of the harmonisation process.
436 The regulation, however, is flawed, and the committee has highlighted some of the reasons why. It will not, for example, catch smuggled entrants whose presence is never documented and who will not be fingerprinted. There may be an incentive for some member states not to record illegal entry if their responsibilities would be invoked under the regulation. There are also problems of bureaucracy and delay and complications. However, I think that we are in something of a cleft stick. Although it is quite widely appreciated that what would work is an asylum choice model accompanied by priority for family reunification, I fear that the Commission is right that that is not politically realistic. So we have the rather ridiculous situation where we have to urge member states to adopt a proposal that we know is second best, because if it is not adopted the whole package will fall apart.
The proposal is something of a political symbol rather than a workable system, especially for the United Kingdom. Even if it was not designed to address the Sangatte situation, everyone links it with that. I do not know whether the French, in particular. will accept that clause in the negotiations. With the closure of Sangatte, I expect that we will see many people on the streets of Calais, as we had before Sangatte, which makes the decision rather dubious. However, I accept with resignation that we need to push for adoption of the Dublin regulation while at the same time working to revisit it in a few years when the climate about asylum and migration may be rather different. Perhaps the tabloid newspapers will be running headlines begging Albanians, Afghans and Iraqis to come here to help keep our economy and public services going.
As Mr Fortescue said in evidence:When we have a perfectly operational common asylum system, it will be possible to look at the simpler system again … it would have no chance whatever of getting through the Council today".
If the European Parliament were a joint legislator, I like to think that we might be able to ensure that to get to, say, Hampstead from here, we would not have to go via Clapham. Unfortunately, however, the Council lives in a world of its very own and has got itself into something of a stew on asylum and immigration.
I shall deal rather briefly with the refugee qualifications directive. Your Lordships' Committee is quite right that this should have been the first in the package as the key to the rest. A majority of the European Parliament have strongly welcomed the inclusion of subsidiary protection. We agree that once this directive is adopted, we should revisit all the other elements of the package. Subsidiary protection must not be a substitute for refugee status but additional and complementary to it. We also strongly welcome the inclusion of non-state persecution or cases in which the state is unwilling or unable to offer protection. That would indeed be generalising the position taken by the United Kingdom courts. Germany is changing its law, although that is subject to constitutional litigation, and I hope that the French, too, will come round to that position.
437 The European Parliament regrets, as I personally do, the exclusion of EU citizens from the scope of the directive. It sends a dangerous signal to the international community that we are as a zone opting out of our international obligations. It also creates quite a muddle as the protocol to the Treaty of Amsterdam does not absolutely rule out refugee claims from other member states, although it does require a presumption of being manifestly unfounded. Of course we hope that asylum claims within the EU could not arise. Although the human rights clauses, the Copenhagen criteria and so much else are designed to prevent that possibility, we should not, especially with the prospect of enlargement, rule it out. Last year, there were 300 grants of protection in EU member states for nationals of applicant countries, with probably a high proportion of them being Roma. We should work to make asylum unnecessary and unthinkable within the EU, like war is; we should not ban it a priori.
Due to the shortage of time, I shall just mention the other issues on which the European Parliament voted amendments a couple of weeks ago. I note, however, that we have voted for broad parity of treatment in the way in which refugees and beneficiaries of subsidiary protection are treated, along the lines that the committee has recommended.
There are legal and cultural differences across the EU in the way that subsidiary protection is regarded; whether in quality or duration, it is somehow "lesser than" refugee status. On the quality of justification of protection, we should reject any such contention. However, perhaps there are reasonable arguments to regard subsidiary protection as more likely to end, or likely to end sooner, than refugee status. I therefore understand the perspective that regards its benefits as limited in duration but renewable. I think that the better view, however, is to regard subsidiary protection as permanent although revocable. Perhaps we in the United Kingdom have to accept more than we have the notion of cessation of a protection status. I think that we are less used to that idea than are other member states.
I should like, if I may, to quote my honourable friend in another place, the Liberal Democrat shadow Home Secretary, Mr Simon Hughes, who recently wrote:Our continued UK reputation as a fair-minded and tolerant country, economically successful and traditionally respectful of human rights is a good reputation to have. On reflection and on balance, this may be better and more important for Britain than the generally inaccurate belief that we are perceived as soft for some purposes by some people in some … parts of the world".
I hope that we will take that type of thinking into the Brussels decision-making process, not a preoccupation with keeping down numbers for its own sake.
I very much welcome this report from your Lordships' committee, for which I have the highest esteem. I realise that this place has budgetary restraints, but I think that it would be excellent if all reports from the European Select Committee could be 438 provided to members of the relevant committees in the European Parliament. I believe—not speaking purely as a Member of this place—that the reports would be regarded as very valuable by my colleagues in the European Parliament.
§ 12.9 p.m.
§ Lord Dholakia
My Lords, I thank the noble and learned Lord, Lord Scott of Foscote, for his important contribution. He set the tone for the debate. There is no need to rehearse much of the argument that he put forward.
I am pleased that the noble Lord, Lord Filkin, will respond to the debate as he dealt with the Nationality, Immigration and Asylum Bill until well past midnight last night. However, he has the one consolation of knowing that there will be no Division today. I was also pleased to hear the contribution of my noble friend Lady Ludford, who has taken a particular interest in these matters in the European Parliament.
We have had an excellent debate on two of the most important documents produced by the European Union Select Committee. The Select Committee deserves our congratulations on the way in which it identified the main issues and produced sensible recommendations that I doubt anyone can dispute. The list of witnesses who gave evidence comprised people and organisations of distinction. Their contribution is much valued.
The subject of the debate is topical. Both this Government and the previous Conservative administration have struggled to deal with the complex issue of immigration and asylum matters. This country is making the fourth attempt in 10 years to rationalise legislation. One has the feeling that it may not be the last.
In the past we have often produced legislative frameworks on the basis of our stand on liberty and our concern for maintaining decent values in a troubled world. Our membership of the European Union has added another dimension. We have now taken into account human rights. Many of the present legislative provisions are examined in the context of the convention and the treaties. Those are not in dispute. For example, Article 63 of the EC Treaty requires the Council to adopt, within five years of entry into force of the Amsterdam Treaty, measures on asylum in accordance with the refugee convention of 1951 and the protocol of January 1967. The Tampere European Council of 1999 confirmed that the Union was fully committed to the obligations of the Geneva refugee convention.
We on these Benches advocate the establishment of a common European asylum policy. This has been endorsed by the European Union. At the centre of that approach is the recognition of the full and inclusive application of the refugee convention. Taking that to its logical conclusion, the Union has confirmed that it respects absolutely a person's right to seek asylum. No closing of frontiers will prevent asylum seekers from seeking refuge.
439 The legislation, which has just completed its Third Reading in your Lordships' House, benefited substantially from the comments of the Joint Committee on Human Rights and the Select Committee. As my noble friend Lady Williams of Crosby pointed out in a recent lecture at the Centre for Reform,Joining the European Community we took the long step towards human rights and away from the looser concept of liberty. We did not however differentiate between a culture of law and human rights. Even today, education in the culture of human rights is lacking whereas in other parts of Europe it is commonplace'".I suspect that despite the assurances and advice obtained by the Home Office, there is a gap between the understanding of the culture of human rights here and that in wider Europe. I believe that the Select Committee on the European Union has done a public service as regards bridging that gap.
I believe that many of the provisions of the present immigration and asylum legislation will be challenged in the Court of Human Rights. That is perhaps the only major safeguard that an individual has against a member state. Herein lies the crucial test for our Government. At least that mechanism would help to set standards as regards a common European Union policy. The report welcomes the directive; so should our Government. There is an opportunity to remove differences of law and practice. Common standards would rightly assist in the reduction of secondary movement in the Union. The idea that people come here because we are a "soft" country would be less relevant as someone fearing persecution would know that the treatment he or she would receive would be no different in any European Union state. If we had worked towards common standards, would we have needed the voucher system? Would we have set up the National Asylum Support Service? Would we even have contemplated establishing accommodation centres? The answer is no.
The message from the Select Committee is clear. Asylum matters require sensitive handling and the national and Europe-wide policy should focus on our moral and legal obligations. In a small way the Government have recognised that there is confusion in people's minds about asylum seekers, economic migrants, legal and illegal immigration. However, we are not alone. I refer to the recent debates in France, the Netherlands, Denmark and Spain—even farther away, Australia is not immune. Even bigger issues have been reflected in the former Yugoslavia and central Africa. Afghanistan and now Zimbabwe are on the front lines. Let us not forget the action that might be taken against Iraq which might result in an exodus of refugees from there.
The UK Government have now gone some way to removing the confusion in our immigration and asylum policies. The process of managed migration is a welcome feature of the Government's policy. The recognition of seasonal workers may constitute one of the solutions for dealing with economic migrants. Unfortunately, many of those positive measures have not received the publicity they deserve.
440 I endorse the question that was put by the noble Lord, Lord Clinton-Davis. I am concerned that a number of the Committee's recommendations in this report and in past reports have been ignored. There seems to be little scrutiny of the Government during the negotiation process with the European Council. It would be helpful to know whether the present report will form the basis of EU consultation in future negotiations.
The noble and learned Lord, Lord Scott, mentioned the Dublin convention. Whichever way one looks at the convention, it is clear that the system for dealing with asylum applications in the European Union constitutes a form of human "pass the parcel". Those agencies that are intricately involved with asylum matters, including NGOs, believe that the Dublin convention is fundamentally flawed, based as it is on the notion that the state that played the greatest role in allowing an asylum seeker to enter the European Union should be responsible for his or her asylum claim. The proposed successor to the Dublin convention, known as Dublin II, is founded on the same flawed premise. Does not the Minister agree that we should consider viable alternatives as proposed by the Refugee Council? I refer to family members being dealt with so far as possible in the same member state. In other cases, the member state with which an application is lodged should deal with it. Have the Government given any serious consideration to the alternative to the Dublin convention? We look forward to receiving further information on that matter in due course.
Despite the hype generated on asylum and immigration matters here and in Europe. the Select Committee has produced a report in the best traditions of your Lordships' House. It deserves our congratulations.
§ 12.18 p.m.
§ Baroness Anelay of St Johns
My Lords, I, too, thank the noble and learned Lord, Lord Scott of Foscote, and the committee members for their work on the reports.
As other noble Lords have said, at Tampere the European Council agreed to work towards the creation of a common European asylum system. The two measures in the brief—the so-called "Dublin II" provisions and the refugee qualification directive—are seen as the last two elements in a four-part package aimed at achieving that aim. The noble and learned Lord, Lord Scott, was absolutely right to place the directives in a wider humanitarian context. All too often we become swallowed up in the minutiae of bureaucracy and lose sight of the overall impact with regard to humanitarian issues that we are trying to achieve.
These issues have been keenly debated recently in the European Parliament. As other noble Lords have said, they have also been the subject of keen debate in your Lordships' House during the passage of the Nationality, Immigration and Asylum Bill, which 441 received its Third Reading in the House last night—or in the early hours of this morning. We have had 13 days—and nights of debate on this subject.
We have certainly improved the Bill slightly; the Government have been adamant that we should not improve it, but we have tried to do so in part. The Government have made some improvements, which we welcome, but by no means enough. I was disappointed to read in the press this morning that a Home Office spokesman has been quoted as saying that improvements made by those on these and the Liberal Democrat Benches will be summarily overturned when the Bill is debated next week in another place. I hope that there may be calmer reflections on what has happened in that Bill.
In the European Parliament my colleague, Timothy Kirkhope, our spokesman on justice and home affairs, made clear our opposition to a common asylum and immigration policy for the EU. He warned against the EU going it alone on asylum and said:Any attempt by the EU to usurp the UN Convention of 1951 should be resisted. The UN Convention is approved by countries all over the world—not just in Europe—as a humane basis for asylum. Over 90 per cent of all applicants for asylum in the UK fail to meet those criteria. Britain must resist any new 'European' criteria which would confuse the issue and become a political football for individual priorities. It is also vital that asylum procedures remain under the control of Nation States and their legal systems".
It is of course right that we should co-operate as much as possible with our EU partners in reaching agreement over the proper and swift processing of asylum claims. A common system should not mean a common asylum policy. That would be a step too far. I agree with the comments of my colleague, Timothy Kirkhope. That view underpins my approach to today's debate.
I turn to the Dublin II regulation, which appears as the earlier item on the Order Paper. When, Angela Eagle, the then Minister, gave evidence to the committee, she was hardly effusive in her praise for Dublin II. She said that it,can be a lot better than the instrument it seeks to replace".
A cynic might say that it would be difficult not to do better than Dublin I.
Paragraph 10 of the letter from the noble Lord, Lord Filkin, to my noble friend Lord Brabazon of Tara states:It has been clear throughout the negotiations on Dublin II to date, that some Member States would wish to see a very different draft proposal to that originally made by the Commission, which was welcomed in general terms by this Government".
Worryingly, the Minister goes on to say:Strong opposition has been voiced to tight time limits, lower standards of proof and an order of criteria reflecting importance of policing external border or tackling illegal presence. In order to address some of these concerns and in an effort to reach agreement the Presidency has proposed a draft statement to the Council minutes in the form of a declaration linking adoption of Dublin II to overall EU efforts to fight illegal immigration and enhance external border control. The Government is satisfied with this approach on the basis that it seeks to retain the underlying principles of the original proposal".442 The aim of seeking to retain the underlying principles is fast going out of the window. I am worried about this paragraph and I hope that the Minister will elaborate on it in his response.
We all agree that there have been problems with Dublin I and we are worried that Dublin II will not solve the problems that we have previously faced. The noble and learned Lord, Lord Scott, concluded by doubting whether Dublin II will be the last word on these issues; that is absolutely right. There are other avenues that we should go down in our effort to resolve the problems.
I note that the regulation emphasises keeping family groups together. I was pleased to note that paragraph 12 of the letter of the noble Lord, Lord Filkin, to my noble friend Lord Brabazon of Tara stated: "The 'family members' definition"—in Article 2(i)—is now limited to refer to the nuclear family insofar as this existed in the country of origin".
However, it goes on to say that,there is a minority view against this approach".
I should be grateful if the Minister told the House who holds that minority view. It leaves us with a concern about the future viability of that definition.
I note that Article 10 states that where it can be shown that an asylum seeker has irregularly crossed the border into a member state by land, sea or air, having come from a non-member state of the EU, the member state thus entered shall be responsible for examining the asylum application. It also says that that state shall cease to be responsible, however, if it is shown that the applicant has been living in the member state where the application was made for at least six months before making his or her asylum application. In that case, it continues, it is the latter member state that will be responsible for examining the asylum application.
When I read those provisions, I knew what they were trying to achieve but it shows how difficult it is to describe asylum law in the EU context. Did the Government introduce amendments to the Nationality, Immigration and Asylum Bill on the importance of making claims at point of entry to meet the requirements of Article 10? It appears as if that might have been the case.
We on these Benches have always argued that one of the most important solutions to the problems posed by Dublin I is that one should carefully re-examine the pursuit of bilateral agreements. Before the Dublin convention came into force those bilateral agreements with France and Belgium enabled the UK to return within days asylum applicants who could and should have applied in those countries. Those agreements were scrapped, as regards asylum applications, when the Dublin regime was introduced. Article 24 of the proposed regulation enables member states to establish "on a bilateral basis" administrative arrangements to facilitate the application and increase the effectiveness of the regulation. Why not do so? What action are the Government taking now to establish bilateral agreements?
443 I turn briefly to the refugee qualification directive. That proposal deals with the most fundamental questions in the asylum field. I agree with the noble and learned Lord, Lord Scott of Foscote, that that proposal should have been resolved first before we moved on to anything else. Who is a refugee? Who is otherwise in need of international protection? The UNHCR rightly commented,the importance of this Directive cannot be overstated".
I note that there is a difference of opinion between the committee and the Government with regard to the relationship between the directive and existing refugee and human rights international instruments; further clarification in the text is needed, in particular acknowledging the primacy of the Geneva Convention. For example, the report expressed concern that silence on the question of the relationship of the directive with relevant international law instruments, such as the Geneva Convention, the European Convention on Human Rights and the convention against torture, could result in the lowering of international standards on refugee protection. Have the Government thought further about that since their recent response to the noble and learned Lord, Lord Scott?
I was naturally intrigued to note that the report commented on the fact that there are already signs that member states are being tempted to treat persons coming from an accession country as if they were automatically coming from another member state, claiming that such countries are "safe". That is precisely what we debated in relation to the new clauses introduced by the Government to the Nationality, Immigration and Asylum Bill. I refer to Clause 92. We on these Benches supported the Government's objectives in that regard. We were concerned about the actual processes but we overwhelmingly support the Government in that regard. However, that does not mean that we in any way underestimate the problems that may be faced by people such as the Roma people when making applications for asylum. I strongly anticipate that we shall have to look carefully at what happens to Roma people if and when they feel that they are subject to persecution in their own country.
I thank the Refugee Council for its briefing in advance of today's debate. Rather modestly, it apologises for the fact that its briefing was late because it was doing rather a lot of work on the Nationality, Immigration and Asylum Bill. It does not need to be modest: it has done a huge amount of work on both and, I venture to say, I am sure that we are all grateful for that.
I am interested to note that, in its covering letter, the Refugee Council rightly expresses concern that, in the past, a number of recommendations made by the European Select Committee—this particular subcommittee—have been ignored by the Government. It is concerned that, once a report has been drafted, there appears to be little scrutiny of the Government during the negotiation process with the European Council.
444 The council raises an important point about the authority of Select Committee reports of this House. I believe that that is a matter which will, and must be, the subject of much debate during the consideration of the future of this House. Today, I am very grateful to the noble and learned Lord, Lord Scott of Foscote, for giving us the opportunity to look at these two reports and thus, thereafter, to give us an opportunity to hold the Government to account on their response to these matters. I certainly look forward to hearing the response of the Minister.
§ 12.30 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)
My Lords, it seems as though it was only yesterday that we discussed asylum and immigration. Of course, I am wrong; it was this morning, as has been commented upon. I start by expressing thanks to the noble and learned Lord, Lord Scott, and to the committee for the work that they have done in these and other reports.
I shall mention briefly the relationship between government and the scrutiny processes through the committees. I believe they are challenging in two senses: first, in terms of the intellectual, and sometimes political, challenge that the committee poses to government during the process; and, secondly, in terms of how one scrutinises a process that can last for two years during the period of negotiation. Although now is not the time, that is an issue for reflection and perhaps discussion at some stage. Given the likelihood of no reduction in the volume of such measures, to put it mildly, and even the potential for increasing the speed of the decision-making processes, one tries to get the best possible fit between scrutiny and decision-making.
In short, the influence that a Select Committee has on negotiations does not bring to bear when the red booklet is finally published; it comes from interventions throughout the process—the meetings and the oral hearings—which clearly mark issues for the attention of government, give us guidance and sometimes put us on warning that, if we do not attend to issues that are of concern, we shall hear more about them subsequently. Without wishing to take away from the value of the final report, that ongoing process is at the very least as influential and important. I know that both I and my officials treat it seriously.
Secondly, I want to say a brief word about our stance, as touched on by the noble Baroness, Lady Anelay, with regard to European Union measures in this field. The broad stance of the Government is that, if issues can well be dealt with domestically, they should be. However, for some issues—asylum and immigration is a classic example—it is not possible to solve that challenge simply by domestic action. We are so affected by the actions of others, and they by ours, that one must consider the potential benefits of common action.
We are also aware that the challenge for the European Union is to try to maintain high standards of humanitarian protection for people who justify, and 445 should receive, refugee protection under the 1951 convention. The Union must also distinguish those people from the very large numbers who are trafficked or make their own way into the European Union for the understandable motive that they want to seek a better life and want work and a better standard of living in the European Union. Of course, it is not possible to accommodate all of them.
An early question raised by the noble and learned Lord, Lord Scott, was: why should this not apply to EU nationals? The simple answer is that the priority, as seen by member states, has been with third-country nationals entering the European Union. The number of people who apply from outside the European Union is vastly greater than the very small number who apply from within. That is a partial answer and I am sure that the noble and learned Lord would say that it is not sufficient.
As the noble and learned Lord remarked, the other point is that European Union citizens can live and work anywhere. They can also make an asylum application to any EU member state in which they happen to be. There is nothing to stop them doing that and there is nothing wrong in principle with doing so. The Spanish protocol to the Treaty of Amsterdam merely states that any decisions made by member states are to be based on a presumption that an asylum application is manifestly unfounded. That does not mean that it can be rejected out of hand or that it can be ignored. But it means that the burden of proof is on the applicant, and the member state still has responsibility to consider and assess the application fairly. It should be justiciable if it does not do so.
Next—I do not guarantee to take the issues in the correct order—the noble and learned Lord raised the question of non-state persecution. He hoped that it would not be weakened. We strongly agree with the noble and learned Lord. We also hope that the protection measures against non-state persecution will not be weakened as we consider them to be right and necessary.
The noble and learned Lord raised the issue of a well-founded fear of persecution being conditional on an applicant's motivation—that is, the question of manufactured claims. We agree that each case must be considered on its merits. The question is: will there be a well-founded fear of persecution or of serious harm if the person is returned? The fact that a claim of fear of persecution or of suffering serious harm was manufactured does not necessarily mean that such a fear cannot be well-founded. However, clearly it raises questions as to motivation, and those questions must be considered. I shall say no more because I believe that that, in essence, is the Government's position.
With regard to the question whether appeal rights in Dublin cases should be non-suspensive, the existing legislation in the UK, which the 2002 Bill will maintain, is that a Dublin removal is non-suspensive if the Secretary of State certifies that any human rights claim is manifestly unfounded. It is possible to seek permission for judicial review of such a certificate. The House of Lords, sitting in its judicial capacity, 446 confirmed that judicial review of a certificate was an effective remedy. I seem to recollect that my noble and learned friend Lord Falconer made that point last night.
The fundamental question touched on by the noble Baroness, Lady Ludford, and others was: is the effort worth the candle; that is, will the results justify the effort? The sane answer is that that remains to be seen. But we would not have reached the point that we have unless we believed that there was potential for making it work better. To begin with, we believe that there must be a linkage—almost a motivation—between the country whose border controls allow entry and the consequence of that action. Perhaps I may put it more clearly. With largely free movement in the European Union area—that is not totally the case because of our opt-out—people can enter and move around the European Union and make applications in any, or even sequential, member states. Therefore, border control is extremely important in the attempt to instil some sanity into that system. I believe that the latest estimate is that half-a-million illegal migrants come into the European Union each year, not all of whom claim asylum.
A mechanism such as Dublin II effectively puts pressure on member states which allow entry to consider how to improve their entry procedures. They bear some of the consequences of entry in ways that perhaps otherwise they would not do. Many of the negotiations between member states in the JHA concern the attempt to recognise that we all experience each other's pressures and problems and the attempt to get a "fit" between the interests of those who allow people to enter and the consequences of that. Perhaps I am still not expressing that as clearly as I should, but that is at the heart of many of the negotiations.
To make a specific point on that issue, that is why the United Kingdom has been up-front in recognising that Dublin II potentially places great burdens on the countries that border entry points into the European Union. Therefore, we saw it as only right and fair that there should be some compensatory burden-sharing in relation to the cost and difficulties of policing those borders. We have made it clear in JHA and elsewhere that we consider it to be necessary and right to place the burden on those who enter the Union. I believe that the Commission shares our view on that, and it may be one key in trying to obtain subsequent agreement on the matter.
The other reason that Dublin II will potentially work is that, unlike Dublin I, it is justiciable. I would not want to imply that that automatically means that it will work. But, in other words, it is a legally enforceable agreement. Before it goes to the Luxembourg court there will be a mechanism between members states for considering disputes and arguments—that is what should happen at a common sense level—to see how, if someone is "mucking about" repeatedly, the process can be improved.
In passing I pay tribute to the Commission, which is performing well on asylum and immigration issues. That does not mean that we agree with everything it 447 does. Commissioner Vitorino is behaving with commendable humanity and skill in these issues. We often, if not always, support him.
The noble Lord, Lord Thomson of Monifieth, raised the issue of whether Britain should contribute constructively to a common EU asylum system. We see that as important. We do not believe that we should abdicate domestic policy. However, we should identify areas where we need collective action to be able to get benefits domestically.
As regards the pursuit of subsidiary protection, we would favour greater harmonisation. However, at present views among member states are widely divergent. Therefore, we have had to take the initial view that we should get this package of measures agreed and implemented. No doubt when the time is ripe we can come back and further consider the matter.
The noble and learned Lord, Lord Scott, is right; Dublin II is not the last word. That does not mean that it is hopeless, but one is looking from experience to see how to get member states to work together on some of these issues and to move forward. To some extent these are minimum standards. Minimum standards are the product of a negotiation mechanism. Effectively, that means that every member state has a right of veto. That has a consequence on speed and the level of agreements one can reach. That is not to say that this is not worth having, but that some of it is underpinned by a fundamental realpolitik.
Article 9(i) defines the act as a persecution and includes non-state actors. As I implied earlier, we support the inclusion of that definition. I take the point about the qualification directive raised by the noble Lord, Lord Clinton-Davis. We are where we are at. We are pleased at the priority given to this issue by the current Danish presidency. A fair amount of progress has been made and we hope that soon it will be finalised.
The noble Lord asked whether there is a real hope that enlightened self-interest will persuade others to oppose or support measures in the package. That is a good question. I referred earlier to that point. We recognise that there may be a difference in interest of cost and benefit between member states on such issues. Therefore, the negotiation mechanisms and any compensation mechanisms must try to achieve an alignment of such costs and benefits to ensure that the motivational push is in the right direction. That sounds a rather theoretical response, but I hope that the noble Lord understands what I mean.
We must try to move some of that forward. That is why the Home Secretary at the JHA before Seville and the Prime Minister at Seville, supported by President Aznar, pushed strongly for timetables for the negotiations. As a result, we now have completion target timetables for all four, which has helped to focus the mind.
The noble Baroness, Lady Ludford, raised interesting and important questions concerning the role of the European Parliament and the JHA. Those are some of the issues being discussed in the Future-of-Europe discussions, in which we are active, and which 448 are extremely important. I do not fully share her view that the JHA got into a stew over that. I am probably a newcomer and have so far attended only four meetings. The noble Baroness is right; the meetings are not held in public. However, I sense that the member states work well together in those discussions. There is a common analysis of the problem of identifying and protecting asylum seekers without being completely overrun by economic migrants.
A strong thread of humanity runs through such discussions, more than one might suppose, and an increasing focus on practicality rather than rhetoric. I do not pretend it is perfect, but nor is it hopeless. Some good working relationships are developing. Both David Blunkett and I are pretty vigorous in terms of our attendance and contributions. We achieve benefit from such discussions and hope that we contribute benefit. As regards the opt-out for long-term migrant workers, the noble Baroness is right; we have an opt-out based on our protocol in the Treaty of Amsterdam. As the noble Baroness knows, we do not agree on that.
I turn to differences between subsidiary protection and refugee status. Many noble Lords will know that there are two arguments on why there are such differences. The first is to preserve the special status of refugee status, which is particularly important and valuable; and the second that situations giving rise to subsidiary protection may be less permanent than those giving rise to refugee protection. There are—the UK shares this view—circumstances in which one might not want to give subsidiary protection for ever because circumstances might change, allowing a return. We have seen successful returns in the past into Kosovo and elsewhere.
I thank the noble Lord, Lord Dholakia, for his comment on managed migration. That is part of a bigger picture. We must recognise that one has to deal at source with some of the problems. I refer to massive inequalities in wealth which naturally create and generate a push from people in poor countries to rich countries to try to obtain work and a better standard of living. We cannot solve that simply by end measures such as this. Other measures right at the front of the process are required, which will take years. That will require a commitment. I shall not comment on the recent CAP or the weakening of the Doha negotiations because some of us may feel strongly about those at this point. However, noble Lords will know what I mean in that respect.
I turn to alternatives to Dublin II put forward by the Refugee Council. In essence the worry is exactly as put. If asylum seekers could choose to which country to go to claim refugee status that would be a trafficker's choice or it might disadvantage those countries which have low unemployment, a liberalised job market, fairly strong ethnic minority populations and an English language, which in itself is certainly a pull factor. I say no more about other controversial issues. Those are some of the reasons why we believe that that is not a runner at this stage.
The noble Lord, Lord Dholakia, commented on Dublin I which, in a sense, was formed to try to stop refugees being in orbit, recognising that that is not 449 good for the refugees and is not good administration. That is why we believe that member states have to agree to take back asylum seekers and to determine the asylum claim if they have a fundamental responsibility.
The noble Baroness, Lady Anelay, asked about family measures. The minority view concerned alternatives to Dublin mechanisms rather than family membership. The noble Baroness asked about claimants at the point of entry and Article 10. The answer to her question is "no" because we think that that leads to an abuse of the asylum system. What are we doing about bilateral agreements? Dublin II makes provision for those. We have excellent co-operation with the French and the Belgians, which is particularly focused at present on border entry processes. Good, firm country relationships with other member states have a part to play in many issues. Therefore, those issues are also on the agenda, although perhaps other issues have taken prominence at this point.
I turn to the incorporation of ECHR into the agreement. All directives must be consistent with ECHR as it is bedded into EU treaties. We see no real need for individual directives to refer to it at every point in time. It sits on the table as a fundamental obligation from which we cannot or would not want to resile. I touched earlier on the scrutiny of negotiation processes. I would welcome an opportunity to discuss some of those important and complicated issues at some stage outside the Chamber.
The noble Baroness commented that there should not be a common EU policy. I mentioned earlier our stance on that. The negotiations have been slow and difficult. However, they are valuable at least in terms of achieving common standards. Future debates will concern the extent to which those have been achieved and whether we need to consider the next stage of raising some of those standards and processes or to identify to what extent they could be made to work better. So I do not see this as the end word on the process, but as part of the process of travel. It will be difficult, but it is important that we stay in there.
In conclusion, I thank again the noble and learned Lord, Lord Scott, and his committee for the valuable scrutiny role they play and for their contribution to government policy and to government's negotiation on it.
§ 12.51 p.m.
§ Lord Scott of Foscote
My Lords, speaking for myself and on behalf of the sub-committee of which I have the honour to be chairman, I thank noble Lords for their complimentary remarks on the two reports. I join the noble Lord, Lord Thomson—a distinguished member of the sub-committee—in expressing my appreciation of the massive and invaluable input of Dr Kerse, the legal assistant to the sub-committee, and of staff. Without their assistance these reports would be inadequate. We owe a great debt to them. Your Lordships' remarks reflect that value.
450 I am grateful for the extremely helpful comments of noble Lords on the important issues raised by the two reports. I am grateful also to the Minister for his helpful response to some of the points raised. These are, as all have recognised, very important issues. They are not issues of immediate importance only; they will continue to be important for the years ahead, possibly for so far as we can reasonably foresee.
The measures which prompted the two reports are not, as your Lordships know, final. They are still undergoing negotiation in various—and presumably important—respects. In due course amended drafts are expected. Those will have to go to Sub-committee E for further scrutiny. In that scrutiny the sub-committee will be greatly assisted by what has been said in today's debate. I thank your Lordships for that.
On Question, Motion agreed to.