HL Deb 04 July 2003 vol 650 cc1198-216

2.21 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)

rose to move, That the draft order laid before the House on 17th June be approved [23rd Report from the Joint Committee].

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

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

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

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

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

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

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

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

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

As with the seven states added by the first order—and, indeed, with the initial 10 EU accession states in the Act—it is not the case that those countries are totally safe for everyone. That is a test which few if any states could claim to meet. Inclusion on the list reflects a general level of safety, not a total absence of any mistreatment. It is for that reason that we continue to give every asylum claim from a resident of a designated country full consideration on its individual merits. The claim would not be refused or certified as clearly unfounded unless we were satisfied, after individual consideration, that the claim fell to be refused and certified.

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

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

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

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

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

2.30 p.m.

Lord Goodhart

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

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

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

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

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

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

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

If the decision of the Home Secretary to add a particular country to the list were challenged by judicial review on the ground that his decision was irrational, then advice by the panel that the country was, in fact, suitable for addition to the list would obviously strengthen the Home Secretary′s hand. By contrast, if the panel said that the country was not suitable for inclusion in the list, then the Home Secretary would have difficulty in including that country and asylum seekers would be protected from what would be an unjustifiable presumption that their claims were unfounded.

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

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

Sri Lanka has undoubtedly shown considerable improvement during the past year and there have been peace talks between the government and the Tamil Tigers, and a cease-fire while those talks have taken place. But those talks are now stalled and while fighting has not yet resumed it plainly could at any time. Conditions are now acceptable in parts of Sri Lanka—those parts under the control of the government. However, I must refer to what the State Department said about the Tamil Tigers in its report on human rights in Sri Lanka for 2002. It stated: The LTTE continued to commit serious human rights abuses. The LTTE reportedly committed several unlawful killings, and was responsible for disappearances, torture, arbitrary arrest, detentions and extortion. Through a campaign of intimidation, the LTTE continued to undermine the work of elected local government bodies in Jaffna. On occasion the LTTE prevented political and governmental activities from occurring in the north and east. The LTTE continue to control large sections of the north and east of the country. The LTTE denied those under its control the right to change their government, did not provide for fair trials, infringed on privacy rights, somewhat restricted freedom of movement, used child soldiers, and discriminated against ethnic and religious minorities".

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

Let me turn to Amnesty′s comments on Brazil for 2002. It stated that, Thousands of people were killed in confrontations with the police. Police were responsible for many killings in circumstances suggesting extrajudicial executions. Torture and ill treatment as methods of extortion continued to be widespread and systematic in police stations, prisons and juvenile detention centres. Human rights defenders continued to be intimidated, threatened, attacked and killed. Land and environmental activists, as well as indigenous people fighting for land rights, were also threatened, attacked and killed by police or those acting with the assent of the authorities".

Can Brazil be suitable for inclusion on the white list?

The State Department, in reports on the other three countries in the list of seven—Bangladesh, Ecuador and Ukraine—stated that the respective governments′ human rights records remained poor. In the case of Ecuador, the report referred to credible reports of killings by police, security forces and semi-official entities. It referred to torture and mistreatment of detainees; arbitrary arrest and prolonged detention; violence and pervasive discrimination against women, indigenous people and Afro-Ecuadorians; and mob violence and vigilante killings. Can Ecuador be considered suitable for inclusion in the list?

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

Finally, I come to Bangladesh. Let me read some paragraphs from the State Department′s report on that country because they are very alarming indeed. I apologise for the fact that this may add a little length to my speech. but I think it must be done. The report states: The Home Affairs Ministry controlled the police and paramilitary forces, which had primary responsibility for internal security. Police were often reluctant to pursue investigations against persons affiliated with the ruling party, and the Government frequently used the police fix political purposes. There was widespread police corruption and lack of discipline. Security forces committed numerous serious human rights abuses and were rarely disciplined even for the most egregious actions … The Government′s human rights record remained poor and it continued to commit serious human rights abuses. Security forces committed a number of extrajudicial killings, and deaths in custody more than doubled from 2001. Both major political parties often employed violence, causing deaths and numerous injuries. According to press reports, vigilante justice resulted in numerous killings. Police routinely used torture, beatings and other forms of abuse while interrogating suspects and frequently beat demonstrators. The Government rarely punished persons responsible for torture or unlawful deaths. Prison conditions were extremely poor. The Government continued to arrest and detain persons arbitrarily … The lower judiciary was subject to executive influence and suffered from corruption. A large judicial case backlog existed and lengthy pretrial detention was a problem. Police searched homes without warrants, and the Government forcibly relocated illegal squatter settlements. Virtually all journalists practised some self-censorship. Attacks on journalists and efforts to intimidate them by government officials, political party activists, and others increased. The Government limited freedom of assembly, particularly for political opponents, and on occasion, limited freedom of movement … Violence and discrimination against women remained serious problems. Abuse of children and child prostitution were problems. Societal discrimination against persons with disabilities, indigenous people, and religious minorities was a problem. The Government limited worker rights … and was ineffective in enforcing those workers′ rights in place. Some domestic servants, including many children, worked in conditions that resembled servitude and many suffered abuse. Child labor and abuse of child workers remained widespread and were serious problems. Trafficking in women and children for the purpose of prostitution and at times for forced labor remained serious problems".

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

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

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

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

2.45 p.m.

Baroness Anelay of St Johns

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

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

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

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

We are told by the Minister that the advisory panel will, the Government hope, be up and running in September. Therefore, the noble Lord, Lord Goodhart, rightly asks the question: why not wait just that little bit longer? I do not think that the Minister has given a satisfactory response yet. I look forward to his answers to the detailed list of concerns expressed with regard to the individual countries by the noble Lord, Lord Goodhart. I have looked at some of—but by no means all—the information quoted by him and I am aware that outside organisations have concerns about various countries. For example, the Refugee Council briefing refers to Sri Lanka. It appends an analysis of the current human rights situation and says that, it is unreasonable to conclude that persecution and human rights breaches are rare in Sri Lanka". I know the Minister has said that each individual case will be looked at on its own merit. We want the Minister in his response to give a more cogent reason than so far for our accepting his arguments.

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

Lord Avebury

My Lords, I do not think that the noble Baroness has underrated the suspicion that many people outside the House feel about the sequence of events concerning advisory panels and in particular, as she says, the list of countries that we are being asked to approve today.

The removal of UK appeal rights from the citizens of these states means that many individuals with valid claims will have to appeal from overseas, making it far more difficult for them to succeed whatever the Minister may say about the rights of appeal that they still enjoy.

In the first quarter of 2003, 17 per cent of applications by citizens of the countries on the list that we are being asked to approve were granted leave, and 10 per cent of the appeals from citizens of those countries were successful. So the risk of persecution on those figures was not negligible, yet the Secretary of State has concluded that there is in general no serious risk of persecution in any of those countries.

During the passage of the NIA Bill in this House, we expressed concern about the introduction of non-suspensive appeals, which seemed to us to undermine the principle that asylum applicants should be treated on their individual merits. We were assured, as we have been again today, that applicants from the designated countries receive exactly the same consideration as those from elsewhere. How can one expect officials who look at the applications from those countries not to be conditioned in their thinking by the knowledge that the boss does not think that those applicants should have an in-country right of appeal?

The Joint Select Committee on Human Rights in its 23rd report said about the original introduction of non-suspensory appeals that, we consider that a presumption of safety, even if rebuttable, would present a serious risk that human rights would be inadequately protected. We consider that the presumption of safety is unacceptable on human rights grounds". When the first addition to the list of designated states was agreed by your Lordships on 31st March, the noble Lord, Lord Filkin, was at pains to emphasise that there is still the right of appeal—he repeated that today—which is, according to him, almost as good as having the right of appeal on the premises. He stated: The fact that there is a non-suspensive appeal does not mean that there is no appeal. It is perfectly possible for people, who have a lawyer as part of this process, to signal to the British lawyer that they wish to mount an appeal even though it has to be a non-suspensive appeal. People have done so and there are a number of cases where such appeals are going through".—[Official Report, 31/3/03: col. 1126.] But the question is whether they still have the same chance of obtaining asylum, other things being equal, on the same set of facts, as if they had presented the appeal in the United Kingdom. I suggest that the only way to assess that would be to consider the relative success rates of in- country appeals immediately before the order and appeals from abroad in an equivalent period after the order.

As Justice pointed out in its April 2003 inquiry into asylum and immigration appeals, as most appeals that are successful involve challenges to adverse findings of credibility by the first instance decision-maker and as the asylum seeker from a listed state has no opportunity to make such a challenge in person. his chances of success are bound to be lower.

Justice had misgivings about the countries added to the list in March and general concerns about the effect of non-suspensive appeals on the system as a whole, especially the possibility of increased reliance on judicial review. Has the Minister or his department responded in writing to Justice′s critique, and has he discussed those and other matters with it since it produced that report in April?

In March, the Minister said that the fact that all 25 JR applications and all 12 appeals from overseas by citizens of the 10 listed states had been dismissed spoke for itself. Assuming, as we must, that there has not been an abrupt change in the background of the people seeking asylum from the 10 states that were then listed, that appears to show that, on similar facts, it has been made far more difficult for a case to succeed. Presumably, that is what the Government intended. The outcome of adding more countries to the list will be the same.

In deciding whether someone has a well-founded fear of persecution for one of the convention reasons, there will always be circumstances where a reasonable person could take either view. The Government are shifting the burden of proof for people from listed states, so that, in the case of JR, they must show that the initial decision was manifestly unreasonable while, in the few cases in which they manage to appeal from abroad, they are deprived of the chance to establish their credibility.

The number of people to overcome those hurdles will be small, but there can have been no change in the merits of their cases. We certainly agree that it is less likely for people from those states to have a well-founded claim, with the reservations expressed by my noble friend about particular countries, but that does not mean that not a single one qualifies, as the small sample that we had by 31st March would imply. I noticed that the Minister did not give us an update on those figures this afternoon. I think that they would reinforce my point.

In March, the Minister was apologetic about the Government′s failure to establish the Advisory Panel on Country Information, which was provided for by Section 142 of the 2002 Act before that order was tabled. He has explained the reasons why it has not been possible to bring the panel into existence before this order was made. He said that the Government had written to all the organisations that might qualify for places on the advisory panel and that some of them had replied to say that they did not want to engage in the process because they felt that that would cut across their other obligations. Surely that has not taken three months.

The noble Lord′s explanation is not acceptable to the House. In fact, I would go so far as to say that the noble Lord has insulted the House by giving us a formal apology for not producing the advisory panel before March and then having the effrontery to propose an additional list of states this afternoon for our approval.

We very much wish to know what such a panel would have said about Sri Lanka, for example. The Refugee Council has expressed concern about the policy of initial decision-making on asylum seekers from Sri Lanka. It draws attention to the fact that, in 2001, 38 per cent of Sri Lanka appeals were successful. Admittedly, there were fewer successful applications and appeals in the past few months because, as my noble friend explained, there has been a ceasefire. However, the ceasefire is extremely fragile and there are still very serious human rights violations, particularly in the LTTE administrative area, about which my noble friend gave some details.

In the first quarter of 2003, 170 appeals by asylum seekers from Sri Lanka were upheld—10 per cent of the total determined. Also, 11 per cent of the first applications were granted. Those figures do not confirm the Secretary of State′s opinion that, in general, there is no serious risk of persecution in Sri Lanka. If the advisory panel had existed, it could have looked at the information on the country and given us independent advice. I think that the Minister is pleased that we do not have such advice before us because an advisory panel would almost certainly have rejected the inclusion of Sri Lanka on the list.

My noble friend mentioned Bangladesh. This morning, I received a notice from an organisation called Hindu Human Rights, which is concerned with the position of that minority in Bangladesh. It points out that the Hindu population has fallen from 30 per cent of the total in 1941 to 15 per cent in 1971 and just 7 per cent in 2002. Is the noble Lord telling us that Hindus do not suffer any persecution in Bangladesh, or that the other religious minorities do not have an equally hard time? Does he know anything about the position of the Chittagong Hill Tracts, on which I have had a lengthy, detailed correspondence with the Home Office over many years? Is he aware that, although an agreement was made with the people of the Chittagong Hill Tracts that would allow them to have internal self-governance, it has never been properly implemented by the government in Dacca, and the whole territory is occupied by the Bangladeshi military, which continues to perpetrate serious human rights violations there?

My noble friend said that he would have accepted the inclusion of South Africa on such a list. However, noble Lords may wish to know about one factor that deserves consideration. Since we imposed visa restrictions on Zimbabwe in December 2002, most asylum seekers from that country come here via South Africa. I have received an e-mail from a well-known organisation, Bail for Immigration Detainees, about two individuals who chose that route to leave Zimbabwe and ended up in Harmondsworth because they could not prove that they were Zimbabweans and not South Africans.

What will be the position for people escaping from Zimbabwe who obtain, as they must do, false documents in South Africa to come here? Will they have a proper opportunity to establish their identity as Zimbabweans? Will the Home Office always reject the opinion being given by MDC representatives in London that they are in fact members of the opposition? Will the Home Office always, as in this case, refuse to allow the MDC to obtain independent verification of those persons′ claim to membership of the party from original sources at home?

So many things are wrong with the lists before us that I had hoped that my noble friend would press his Motion to a Division. Anyone who has listened to this debate and who knows about the conditions in the countries of origin would say that the Minister was wrong to bring forward this list and that he should take it away and return with a reduced list, if necessary, after the panel has been appointed.

3 p.m.

Earl Russell

My Lords, I thank the Minister for the care and courtesy with which he introduced this Motion. He is, as always, impeccable on that point. I am particularly grateful to him for his concession that there is no such thing as a country in which all people are at all times safe. That is a truly vital point.

It follows from that point, however, that those who are genuinely subject to a well-founded fear of persecution, in a country in which such a thing is very unusual, are perhaps more at risk of having their cases mishandled and their danger mis-identified than almost anyone else. As an example of that, I cite a case that I have mentioned before; that of Mr Matthew Sheppard from the United States, a young homosexual who was found dead, nailed to a fence in Laramie, Wyoming. The noble Lord, Lord Monson, who I am happy to see in his place, said that he could have been perfectly safe living in San Francisco. On that occasion, I forgot to point out to the noble Lord that the first avowedly homosexual mayor of San Francisco was shot dead on his own balcony by a homophobic man, so it might not have been as effective as the noble Lord, Lord Monson, suggested.

Presuming that there are certain countries that are safe is a bit like introducing a presumption of guilt instead of one of innocence into criminal trials. The Minister may wish to tell me that that resemblance is superficial. If he does, I will listen with very great care and an open mind to his reasons. The basic justification that the Government are offering, as outlined in the explanatory memorandum, is that the countries included in the order are safe because a very high proportion of the applications from those countries are found to be unfounded. With respect, I think this is to argue in a circle. It will remain arguing in a circle until we have a great deal more confidence than we do now in the standard of first decisions in asylum cases. For example, the Law Society points out that, in the period shortly before the power came in, a majority of the Czech cases in Oakington were found, on appeal, to be have been wrongly decided in the first instance. That related to a majority of cases, but it need not relate to a majority to be an injustice. That example illustrates that the risk of injustice is real.

It is also a manifest fact that, in several countries—most particularly in South America—conditions may change rapidly. We have seen, with Zimbabwe, how the Home Office is very slow to adjust to a change in conditions in a country from which refugees come. An order that might be justified at the moment of introduction may equally well be totally unjustified three months later. A good many people will probably have died unnecessarily before that is put right.

My noble friend Lord Goodhart drew attention to the prevalence of torture in some of the countries concerned, most notably Brazil. Right back to the 1996 Bill and probably before it, my noble friend Lady Williams of Crosby has persistently drawn the House′s attention to the difficulty of getting evidence of torture in cases in which there is only a very short time for a hearing. Attempts to get people to admit that they have been tortured, like attempts to get them to admit that they have been raped, create great resistance. There is a taboo on admitting it. Decisions in torture cases that are reached in a hurry are often wrong.

I remember one such case in which I had a very long correspondence with the noble and learned Lord, Lord Williams of Mostyn, who was then the responsible Minister. I am thankful to say that in the end he was persuaded by the justice of the case and did what was necessary. But it took an immense amount of time, energy and intelligence of a Minister of very great power which, in a different situation, could have been better deployed on more general issues of policy, which the noble and learned Lord has never lacked to bring his mind to.

The Minister appears to be extremely well satisfied about the non-suspensive appeal. On the other hand, the Refugee Legal Centre, which I suspect has probably more day-to-clay experience of defending people than the Home Office, which inevitably is on the other side, can possibly have, says that it has had very great difficulty with conducting appeals from abroad. When dealing with cases from the Home Office, one regularly finds that it is fairly difficult because the cases have a protean habit of changing.

I am dealing with one at the moment, which is not a particularly complicated case, concerning two unaccompanied minors from Kosovo. They have been here since 1999. They are comfortably settled into a family in Suffolk with foster parents who now wish to adopt them. They are entirely at ease at home and successful at school. The Home Office now wants them to return and was conducting two separate hearings—one in London and one in Nottingham. Clearly, that created a considerable problem of correspondence, telephoning and so forth. The case has changed shape three or four times in the course of two or three weeks; every time one has to drop everything one is doing to take it up and get straight on the telephone, probably before one is dressed.

It is not particularly easy dealing with a Home Office case if it is happening on one′s doorstep and one has expert advice to hand. The thought of doing this with a time difference; with the complexities of international telephone systems, not all of them as good as ours; with the difficulty of language; and with the difficulty of making contact with lawyers in the countries concerned really makes my mind boggle.

I must admit that one dreads taking on an asylum case because one knows that every business one has on hand, however important, will have to take second place until the case is finished. Conducting such a case from abroad will inevitably double and re-double anything like that. Like my noble friend Lord Goodhart, I do not understand what it is about this order which is quite so urgent that it is necessary for the Government not to wait until September before bringing it in. After all, the new arrangements for the sitting time of the House mean that the time until we sit again is not really that lengthy. Will it really be the end of the world if three or four people from these countries, some of whom perhaps genuinely ought not to have been here, actually get in? Is it worse, if that happens, than if a couple of dozen are sent back to face a well-founded fear of persecution?

I have never understood why the Home Office believes that this country is at quite so much risk from a small number of unjustified asylum seekers. It reminds me of what the English said on the union of the crowns between England and Scotland, which is something on which I happen to be working at the moment. There are not that many Scots compared with the English. In fact, in 1571, there were only 40 Scots resident in London. That is the verdict of an official survey conducted under the auspices of the Lord Chancellor. Nevertheless, in 1603, over and over again one finds rhetoric in this House and in the other place, saying that England was in imminent danger of being swamped by the influx of hungry Scots.

A noble Lord

And look at what has happened.

Earl Russell

Yes, I do look at what has happened: a number of Scots have attained positions of distinction, which they have then exercised with distinction. This country is much the richer for them.

This country is far too ashamed of being anything other than an isolated rockpool into which the tide does not flow. But in isolated rockpools the water turns brackish, life dies and quality fades away. Like Jane Austen′s Mr Woodhouse, we cry to "live much out of the world". As a result we are often much surprised by what we find in it.

3.15 p.m.

Lord Filkin

My Lords, I thank noble Lords for their contributions to this important debate on the order. Let me start by saying a few words again to put in context why we think that this order is necessary, timely and proportionate.

The asylum system and the principles of the 1951 convention matter greatly. As a country and as a government we want to be able to continue to offer refuge to those who genuinely qualify under that convention. But, as we know, economic migration is a fact. Illegal economic migration is a problem and it has vastly increased in scale because of improvements in transportation, disparities in wealth around the world and criminal gangs which try to promote it.

Without going over the detail again, non-suspensive appeals play an important part in the process. They were a contentious element in our discussions on the Bill and, for that reason, a number of careful procedures were put in place to try to ensure that they were considered and neutralised safely and proportionately.

As is his wont, the noble Lord, Lord Goodhart, made a powerful speech concerning a number of the countries listed on the order before the House. The world is by no means perfect in all those countries. Indeed, there are very few countries about which one could say that there are no issues of concern, but of course that is not the test of the order. The test is that in general a country is safe for its citizens. The word "general" was put into the legislation for a purpose. It enabled the application of the practice of non-suspensive appeals to be triggered, but still left the responsibility to reach a decision on whether it would be safe specifically for the individual concerned. So it is not a process which states simply that because X country is safe all applicants from that country are therefore automatically not valid asylum claimants. All it does is bring in a difference of process, on which I shall speak in more detail later in my remarks.

For reasons of time and because I am not expert on all the issues raised by the noble Lord, Lord Goodhart, I shall do what I did on the last occasion and write to the noble Lord with specific governmental responses to all the questions raised and the points made on information about specific countries. By so doing I shall be able to set out the reasons for our responses and why we consider that the tests set within the statute are nevertheless met in the judgment taken by my right honourable friend the Home Secretary. That is not to duck the issue, but I can offer a better response if I follow the procedure of the last occasion and write to the noble Lord. Of course I shall copy the letter to Members of the Front Benches.

That is not to dismiss or in any way belittle the importance of being thoughtful, proportionate, concerned and well informed when making judgments and decisions about designation. That is a proper challenge to the Government. All I would emphasise is that the Bill places the two tests before countries can be put on the list, and that those tests are applied generally rather than in all circumstances.

That then turns to a consideration of the circumstances of an individual person, without presumption. Because the country from which they came may in general be thought to be safe, that does not mean that their individual application should be considered to be unfounded, unsafe and inadequate. It is the challenge of the case workers to hold that test before them. That is why they have gone through a specific and specialist training process and why there is a second pair of eyes.

As to the question raised by the noble Baroness, Lady Anelay, and the noble Earl, Lord Russell, of why not wait, the reason we should not wait is that, essentially, we believe these countries now meet the test; and, secondly, there are a substantial number of applications from these seven countries. For example, there were 5,000 applications to the United Kingdom from these seven countries in 2002.

Let me give the most recent figures for the first quarter of 2003. I give these figures with some caution because there is a process of very careful checking of data. We believe the figures to be true. They may move up or down slightly but, nevertheless, they are broadly true. In the first quarter of 2003 we had 1,150 applications from these seven countries, of which 20 people were granted asylum as a result of their applications.

If we wait another three months or so it is likely that we will have another 1,000 or more applicants coming into the United Kingdom, of which, on the evidence we have to date, very few will meet the test to qualify under the Act and under the Geneva Convention. That would not matter so much were it not for the fact that—

Earl Russell

My Lords, I am grateful to the Minister. Can he tell the House, beyond these 20 who were successful on their initial application, how many were found to be genuine applicants on appeal?

Lord Filkin

My Lords, I cannot. I can, perhaps, extemporise from the figures that apply generally between initial applications and appeals. My recollection is that, in general, when one looks at the totality of applications—the comparison may not be exactly correct—between 9 and 10 per cent of applicants were granted asylum on initial application; and, again from my recollection of previous data, 6, 7 or 8 per cent were granted asylum on appeal.

So the figure of 20 could go up but, if I were being generous, it is unlikely to go up by much more than 10 or 15. It would still be a very low figure. That does not mean to say, of course, that all applicants in the future will be considered to have non-valid claims, nor does the process make that assumption.

I was seeking to address the question of why now; why not wait. As your Lordships know it is not simple to remove—in fact it is extremely difficult —and there are substantial burdens on the state in terms of supporting people through the process when they are not removed. I shall not go into detail on that.

I was challenged—courteously by some but less courteously by others—as to whether it was part of the Government′s intent to delay the setting up of the advisory panel to get these orders through. It is the first time my integrity has been directly challenged in the House. Nevertheless, I shall put that to one side because it seems to me that the issues that underpin these considerations of asylum and human rights are so profoundly important that we should concentrate on them rather than on trading insults about each other. So I shall let that pass.

As to my investigations in March when I discovered that I was to make an order in this respect and that the advisory panel was not in place, it was not a pleasant experience to find that the commitment I had given to the House that we would set up the advisory panel had not been implemented. I have had vigorous discussions in that respect. I am convinced that the delay was a result of pressure of work on officials, not of malice on their part. It was not a result of Ministers or officials seeking to take a position. It was something that was not done as quickly as we would have wished. As a consequence of 31st March. the process has moved forward rapidly and it is only a matter of time—I am told early September— before the panel is in place. It needs to be, because that is part of an informed process as to whether we are making fair judgments as a government on those countries and that process. I am not pleased that we do not have the advisory panel established—quite the reverse.

I turn to the question of whether it is possible to have an effective out-of-country appeal in this respect. It is an important issue, although it is clearly not what we are specifically debating today. We are debating the order, but the issue is germane to it.

The process allows the applicant in the country, whose claim has been rejected, to ask to make an appeal to a British lawyer as part of the consideration of the application, and the British lawyer to lodge the appeal as soon as the person has left the country. In fact, some 25 per cent of people who have been certified and removed have made appeals under that process and under the Act. One can argue that two ways. One could say that 100 per cent did not make appeals and that therefore there is some flaw in the process. On the other hand, one could take the view as we do that the fact that 25 per cent have done so shows that the system is effective, and that many have had a go at the system to get in and then not bothered to take it further.

Earl Russell

My Lords, is not the correct test the proportion of success in in-country appeals and suspensive out-of-country appeals? Are those not the two figures that we should compare, and are we yet in a position to make a comparison?

Lord Filkin

My Lords, I shall come to that point later and explain exactly why it is not the comparison that we should be making.

The nature of the out-of-country appeal and whether it is possible for an appellant in those circumstances to have justice was the thrust of a number of questions. The appeal in those circumstances is essentially against whether certification and designation of the country as meeting the tests in the legislation was reasonable. It was not about the circumstances of the individual person. It was not an appeal as to whether that person should have been granted asylum but whether or not the country should have been certified as a non-suspensive appeal country. For that, a British lawyer supported by other excellent non-governmental organisations is well able to bring a case before the courts without the individual person who has been the subject of that wider general decision present before them. Therefore, there is an effective possibility of making out-of-country appeals, because it is a focus on that issue rather than the circumstances of a person′s individual case.

The noble Lord, Lord Avebury, asked about the position of Zimbabweans pretending to be South African. There would definitely be an opportunity for a person on a false South African document to show us that they were in fact Zimbabweans. The noble Lord asked also about the potential successes of out-of-country appeals. I explained the nature of that appeal, and why it is different.

I should signal the position on appeals and judicial reviews. There have been 83 appeals so far from people who have been certified and removed as a consequence of the non-suspensive appeal process. Sixty of those have been heard and, of those 60, all have been dismissed. Forty-seven judicial reviews have been lodged for people in those circumstances, none of which has as yet been successful.

I turn to the query of the noble Lord, Lord Avebury, about the Justice report, which referred to the question of appeals being allowed on the basis of credibility. In non-suspensive appeal cases, certifications are not made on the basis of credibility. A claim is not certified as clearly unfounded simply because we do not believe what they say—in other words, because of doubt about credibility. A claim is certified as clearly unfounded only if objective information shows it clearly to be the case.

Lord Avebury

My Lords, I gave examples of cases in which someone claimed to be a member of the MDC. The immigration officer who dealt with the cases at first application said, "I don′t believe that you′re a member of the MDC—I think you′re a South African national pretending to be someone from the MDC". That was the substance of the two cases I mentioned, about which Bail for Immigration Detainees expressed some concern.

Lord Filkin

My Lords, that is an interesting and, in the circumstances, an important question which deserves an answer. However, I do not see its relevance today as we are not proposing to include Zimbabwe as one of the countries on the list.

I was seeking to respond to the question from the noble Earl, Lord Russell, on the presumption of guilt. Inclusion on the list is not the same as a presumption of safety, because the cases are considered individually on their facts. In January 2003, in its judgment on the case of ZL and UL v Secretary of State for the Home Department, the Court of Appeal stated that inclusion on the list did not establish a presumption that the case would be unfounded. In fact, it said that inclusion on the list did not replace individual consideration of the facts of the claim against the known background data. I think that that is germane.

The noble Earl also asked whether the high number of certificates overturned before the 2002 Act came into force had a bearing. Generally, we believe that the process by which non-suspensive appeal decisions are made is vastly stronger and more substantial—as it should be because it is a non-suspensive appeal. That is not for a second to say that the previous systems were hopeless. The whole process has sought to strengthen very considerably the care with which the initial decision is taken in non-suspensive appeal cases. I have already gone into some detail about how that has been done.

I have spoken at length, for which I apologise. However, I grant that these are important issues. I summarise by saying that I regret that we have not been able to put the advisory panel in place. However, it will very shortly be in place. I have also sought to explain to the House why we think it important that we continue and extend the use of the non-suspensive appeals process as we have done. While there may be a general presumption that a country is safe—and we believe that these seven countries meet that test—one knows when making a decision on an individual applicant that that individual may be the exception to the rule. That is the burden of responsibility which sits on the Government and the immigration officers when they are making such judgments.

The practice and the results of the system seem to us to be working well. This system continues the ability to give asylum to those who should have it while seeking to stanch the flow of economic migrants which risks threatening the integrity of our system.

Lord Goodhart

My Lords, I am grateful to the Minister for his reply, which was rightly a full reply. This has been a substantial debate which has lasted for almost an hour and a half. I shall therefore be brief.

I remain unconvinced by the Minister′s arguments to justify the inclusion of a number of the states included in the list or to justify bringing the list forward at all now rather than waiting until there has been an opportunity to receive advice. It is of course a longstanding convention of the House that although it has the power to reject orders moved by the Government, it does so only in wholly exceptional circumstances. The circumstances of this case fall below, but only just below, that level. It was for that reason that I put forward our amendment in a non-fatal form; that is, one that, even if passed, would not have led to the order falling. Therefore, I do not propose to press the amendment today or to vote against the order.

But having said that, we must make very clear our deep concerns that for a second time the Government have brought forward orders including some questionable states, and have done so before the committee has been set up and is able to report. If that were to happen on a third occasion, it cannot be assumed that we would take the same position as we have done today and on 31st March. I beg leave to withdraw the amendment.

Amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to.