HL Deb 04 February 2005 vol 669 cc502-8

12.36 p.m.

Lord Bassam of Brighton

rose to move, That the draft order laid before the House on 18 January be approved [6th Report from the Joint Committee].

The noble Lord said: My Lords, the subject that we are dealing with today will no doubt be familiar to those of your Lordships who remain in your Lordships' House and who have knowledge of the debates on previous orders that added countries to the list of countries to which the non-suspensive appeal provisions in the Nationality, Immigration and Asylum Act 2002 apply. The draft order that we are debating today will add India to the list of designated countries in Section 94 of the Nationality, Immigration and Asylum Act 2002.

To avoid any confusion, it may be helpful if I say at the outset that the devastation caused by the tsunami does not have a bearing on the addition of India to the list of countries designated for non-suspensive appeals. The designation of India for non-suspensive asylum appeals is solely related to the handling of asylum and human rights claims. India is generally a safe country where people are not routinely fleeing from human rights abuses, and very few people need our protection under the refugee convention. The tsunami was a tragic natural disaster and as a Government and a nation we have responded extremely sympathetically.

We have for the time being suspended enforced removals of failed asylum seekers to the southern coast of India, in line with our overall policy on areas directly affected by the tsunami on Boxing Day. The designation of India for non-suspensive asylum appeals systems is solely about the handling of asylum and human rights claims, as I have made clear. India is generally a safe country, and we consider it such.

Before discussing the specific case of India, noble Lords may find it helpful if I briefly recall the main elements of the non-suspensive appeals process. Those countries that are designated for non-suspensive asylum appeals are considered to be generally safe in the context of asylum and human rights claims. An unsuccessful asylum or human rights claim made by a person entitled to reside in a designated state will be certified as clearly unfounded unless the Secretary of State deems that the claim is not clearly unfounded. The effect of a clearly unfounded certificate is that there will be no in-country right of appeal against the refusal of their claim. The right of appeal will be exercisable only from outside the United Kingdom.

Section 94 of the 2002 Act contains a provision to add countries to the list by affirmative order, but only when the Secretary of State is satisfied that there is in general in that state no serious risk of persecution of persons entitled to reside in that state or part, and that removal to that state or part or it of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Convention on Human Rights.

In considering the addition of India to the list of designated countries, we have taken this legal test as the starting point. We have, as before, taken full account of the available current country information we publish. We have also taken account of other factors such as the number of asylum applications made, the grant rates and the outcome of appeals. I should like to comment on each of the three elements in turn.

The first element is the legal test. We are satisfied that there is in general no serious risk of persecution in India and that it is a country to which removal of an individual would not in general breach the United Kingdom's ECHR obligations. We are not saying that India — or any of the other 14 countries currently on the list—is entirely safe for everyone. No country would meet that test. What we are saying is that these countries are safe for most people.

India has signed and ratified all six of the core UN human rights treaties except the Convention Against Torture, which has been signed but not ratified. India has a democratic, parliamentary system of government with representatives elected in multi-party elections. The constitution provides citizens with the right to change their government peacefully, and citizens exercise this right in practice through periodic, free and fair elections held on the basis of universal suffrage. The constitution provides for an independent judiciary. We have considered particularly the situation of women in India and made the decision to designate the country only following a fact-finding mission to India which found that options for redress were generally available for women in India.

As I said, inclusion on the list reflects a general level of safety, not a total absence of any mistreatment. It is for this reason that we continue to give every asylum or human rights 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.

Particular care is taken to ensure that initial decisions from the designated states are correct. All decisions are undertaken by caseworkers who have undergone specific additional training and have been accredited to make such decisions. Each and every decision is approved by a trained senior caseworker before being served. These are additional safeguards over and above what is in place for those claims that are not from the designated countries. Although cases which are certified do not give rise to an in-country right of appeal, as a further failsafe to this process, individuals whose claims are certified have the opportunity to seek judicial review of the certification of their claim as clearly unfounded if they consider it has been incorrectly certified. Such individuals will not be removed while their judicial review applications are pending.

The second element that we took into account in considering the addition of India to the list of designated countries is our published country information material. Noble Lords will recall that we had previously given a commitment to consult the independent Advisory Panel on Country Information on the country information being used by the Government before making an order to add a country to the list.

The panel has been established since September 2003. Its remit is to provide rigorous external scrutiny of country information material produced by the Home Office and make recommendations to help ensure that it is of the highest quality. The panel has shown itself to be working very effectively and its work has resulted in the introduction of a range of measures to improve the way the material is produced and assure quality. That has led to a widely acknowledged improvement in the quality and presentation of Home Office country information material.

The panel's role in non-suspensive appeals is to provide advice regarding the accuracy and objectivity of the country information produced on the countries proposed for designation. It is not expected to comment on the proposal to designate a particular country. 12.45 p.m.

In that context, the panel held an extraordinary meeting on 7 December 2004 to consider the country information on India. The October 2004 Country Report and the report of a fact-finding mission to India were also considered in regard to the position of women. The noble Lord, Lord Parekh, is a member of the panel and, I understand, attended the meeting. The minutes of the panel's meeting have been published on its website with all the relevant papers.

On the Country Report, the panel had a few concerns about the way the material was organised, but generally found it a fair reflection of the position in India. On the report of the fact-finding mission, it said that relevant information was included in the report, but there were some comments suggesting that it could be presented in a more accessible way. We will ensure that those comments are taken on board as we review the methodology.

I should like finally to turn to the third element that we took into account before deciding to designate India—the statistical evidence.

The number of asylum and human rights applications made by Indians in the United Kingdom is at a high level and not consistent with what is known about conditions in the country. Very few claims are granted. In 2003, excluding dependants, there were 2,290 asylum claims from Indians, 2,335 decisions were taken and only 10 grants of asylum were made. In the first nine months of 2004, there were 1,095 claims, 1,220 initial decisions, but only one or two grants of asylum. In both years less than 5 per cent of appeals have been successful.

I should like to conclude with a brief overview of the impact of the non-suspensive appeals process thus far. The implementation and gradual expansion of the non-suspensive appeal provisions has proved to be an important and effective way in which we can reduce unfounded claims. The intake of new applications from the countries designated on the face of the 2002 Act—the then 10 EU accession countries—fell by 97 per cent from October 2002 to April 2004 when the states concerned became members of the EU and the non-suspensive appeals designation effectively ended. That compared with an overall fall in intake of 70 per cent over the same period.

For the countries designated by the first order which came into effect on 1 April 2003— namely Albania, Bulgaria, Jamaica, Macedonia, Moldova, Romania and Serbia and Montenegro — intake fell by 67 per cent from March 2003 to September 2004. Overall intake fell by 31 per cent in this period. There was a similar and very significant fall in intake from the countries designated by the second order which came into effect on 22 July 2003— Bangladesh, Bolivia, Brazil, Ecuador, Sri Lanka, South Africa and Ukraine. Intake from those countries fell by 47 per cent from June 2003 to September 2004, with the overall intake during that period falling by 15 per cent. Those figures show how effective the non-suspensive appeal powers are and that they are making a significant contribution to our asylum strategy.

With one exception, challenges to the designation of countries for non-suspensive appeals have not reached substantive hearing in the courts. That exception is in the case of a Bangladeshi where we are currently awaiting the High Court judgment on a legal challenge that has been made to the designation of Bangladesh. The challenge is primarily on the basis of the treatment of women, political and religious minorities and children, and is significant enough to mean that, overall, the country cannot be considered to meet the legal test. We will, if necessary, review the position of Bangladesh when the court's judgment is handed down. But in any event, in the context of asylum and human rights claims, the safety or otherwise of a particular group or groups in one country does not mean that another country is unsafe.

Designating a country for non-suspensive appeals provides a disincentive for people with no genuine protection needs misusing the asylum process. That leads to enhanced public confidence in the overall asylum system, a reduction in intake, a speeding up of the process and a consequent releasing of resources which can be used to improve performance in other areas. This order adding India to the list of designated countries is a sensible and measured step towards the increased use of non-suspensive appeals. I therefore commend the order to your Lordships' House.

Moved, That the draft order laid before the House on 18 January be approved [6th Report from the Joint Committee].—(Lord Bassam of Brighton.)

Lord Goodhart

My Lords, I am most grateful to the Minister for the very full explanation he has given of the order's purposes and the principles that lie behind it.

We on these Benches opposed. and continue to oppose, the concept of a white list of countries for asylum purposes. We believe that applications for asylum should be considered on merits and without any statutory presumptions of these kinds and that no distinctions should be made between white list countries and others. However, that is a matter of principle which was decided by the Nationality, Immigration and Asylum Act 2002. It is plainly not correct that that decision of principle should be reopened when considering this order. So I will not go into the question of the merits or demerits of non-suspensive appeals but consider only the question of whether India is or is not an appropriate country to add to this list. In doing so, I would refer in particular to the Foreign and Commonwealth Office report on international human rights published in 2004.

There, are, indeed, some problems. The Minister mentioned the treatment of women. There is also a serious problem with the Dalits—the group of people formerly known as untouchables and now also known as the scheduled casts—who are subject to oppression. They are, indeed, protected under the Indian constitution and by Indian law, but their low status is, unfortunately, deeply ingrained in Indian culture.

Concerns are also expressed in the FCO report about bonded labour. Serious concerns also arise about breaches of human rights by both Indian security forces and militants in the parts of Kashmir under Indian administration. I would like, therefore, to ask the Minister whether India, for the purposes of this order, includes the parts of Kashmir that are under Indian administration and, if so, whether the Government will recognise that in practice Kashmir should not be treated as included in the white list for non-suspensive appeals even if India as a whole is?

In the past there has been concern about routine torture by the police. That led to a decision some years ago of the European Court of Human Rights that the extradition to India of a Sikh activist, Mr Chahal, would be a breach of Article 3 of the European Convention. However, I understand that India has taken steps to correct the situation and that torture does not feature in the FCO report for 2004 in relation to India.

India has a human rights commission that is activist and highly respected, and it has a strong legal system. Indeed, India has a better human rights record than a number of countries that are already on the white list. I therefore take the view that if we have to have a white list it is appropriate for India to be on it. For that reason we will not oppose the order.

Lord Lea of Crondall

My Lords, my noble friend will he aware of the huge strides made in India, as mentioned in the report to which the noble Lord has just referred. Perhaps Bangladesh is a different kettle of fish, but that is not being discussed today.

Two years ago I had the privilege of visiting a number of states in India, the principal ones being Tamil Nadu, Kerala and West Bengal. I had discussions with parliamentarians, including members of the communist party who are very important, certainly in Kerala and West Bengal. I quizzed them on the matters that we are discussing. I was given what I believe to be full and straightforward answers. I certainly recognise the point made about women and about other matters in India. However, I believe those are separate to the matter of the asylum order that we are discussing. The noble Lord, Lord Goodhart, made that distinction and I reach the same conclusion.

Lord Judd

My Lords, while of course this order will be passed today and no one will challenge it, it is important that whenever we have an order of this kind before us, we recall that we are dealing with a compromise. It may in terms of the whole business of political reality be an inevitable compromise, but it is a compromise. There can be no doubt that when one is dealing with the issue of asylum ideally no stone should be left unturned to discover whether or not the individual has a case for asylum. There should not be arrangements of administrative convenience that enable us to short-circuit that process of establishing what really are the circumstances of a particular individual.

I totally endorse the points that have been made about gender but all the time we must remember that here we are dealing with a compromise on the principle of what asylum is all about. It is important to say that because it is important in regard to the way in which we administer policy. We should support Ministers. I have absolutely no doubt that my noble friend the Minister and many of his colleagues are very committed to civilised and decent standards regarding the way in which immigration policy is administered, whatever the policy may be. However, there is too much evidence that that message has not got through to all the people involved in the administration of immigration policy.

The thing that one should remember at all times is that people in that situation should be treated with respect and dignity. One of the challenges to everyone involved in the administration of policy is to ensure that dignity and respect for individuals, whatever the ultimate decision, are at the top of their priority list.

Lord Bassam of Brighton

My Lords, I am grateful to the three noble Lords who have spoken in this short debate in response to my initial rather lengthy exposition. I wanted to ensure that we put as much information as we could into the public domain. That is why I discussed the rationale and the thinking behind the order in the detail in which I did. I am very grateful to the noble Lord, Lord Goodhart, for his response to that.

Certainly the discussions I had with Indian parliamentarians on a recent visit to India gave me increased confidence in the robustness of the Indian parliamentary system, its processes and the way in which it works and operates. I was particularly impressed by the work that is being undertaken by India's national human rights commission. In relation to women's rights, I was especially encouraged to hear of the important piece of legislation on domestic violence which I believe is currently working its way through the Indian parliament. That is part of the Indian Government's common minimum programme. The measure is likely to reach the statute book and offers us further reassurance in that policy area.

The noble Lord, Lord Goodhart, referred to Kashmir. While I know that there are understandable concerns about the position of Indians in Kashmir, and that this is a very difficult area for some, it is included within the remit of the order. I return to the point that I made earlier; namely, that we have to take the country of India as a whole and consider how it meets the legal test for designation. As I explained, we consider that it does. However, having said that, and picking up the point effectively made by the noble Lord, Lord Judd, we have to consider all asylum claims on their merits. They have to be taken individually. We are confident that we can deal with particular difficulties that are thrown up by individual cases. I am sure that noble Lords will understand what I mean in regard to those who might be, or have been, caught up in conflicts relating to Kashmir.

Having said all that, I commend the order to your Lordships' House.

On Question, Motion agreed to.