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Asylum (First List of Safe Countries) (Amendment) Order 2006

Volume 687: debated on Monday 4 December 2006

rose to move, That the draft order laid before the House on 16 November be approved. 2nd Report from the Statutory Instruments Committee.

The noble Lord said: My Lords, I shall speak also to the Accession (Immigration and Worker Authorisation) Regulations 2006.

The safe countries order adds Bulgaria and Romania to the first list of safe third countries at Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This provision is concerned with situations in which an asylum seeker may be removed to a safe third country without substantive consideration of his asylum claim—a third country being one of which he is not a national or citizen. So this instrument is not about nationals from Bulgaria or Romania seeking asylum in the UK.

Countries in the first list of safe countries in Part 2 of Schedule 3 to the 2004 Act are places which are to be treated as safe when determining whether a third country national who has made an asylum or human rights claim in the United Kingdom may be removed to one of them. The first-list countries are presumed to be places from which an asylum seeker will not be refouled in breach of the refugee convention or the European Convention on Human Rights. Provided that the Secretary of State is able to certify, therefore, that the applicant is not a national or citizen of the state listed, she or he may be removed to it and no right of appeal lies against that decision. Applicants may resist their removal on other human rights grounds in the usual way, although provision is made for such claims to be certified as clearly unfounded unless we are satisfied that they are not. If a claim is certified then any appeal may be made only outside the United Kingdom. A decision that a claim is clearly unfounded will be susceptible to judicial review in the same way. If a claim is not certified as clearly unfounded, then the applicant retains his or her in-country right of appeal on those human rights grounds.

The Part 2 list includes all member states of the European Union and Iceland and Norway, all of which are countries bound by the arrangements for determining responsibility for examining an asylum claim set down in Regulation 343, also known as the Dublin II regulation. All EU member states are bound by other European legislation forming part of the common European asylum system. Bulgaria and Romania will be similarly bound from the date of their accession. Therefore, we propose that this order shall come into force on 1 January 2007.

Dublin II, supported by evidence from the Eurodac database of fingerprints, is the cornerstone of the common European asylum system—the European asylum acquis. Combined with other measures implemented as part of the common asylum policy, it seeks to prevent asylum shopping across the European Union. Dublin II and Eurodac require a spirit of mutual trust and confidence at national level and an appreciation of the demands of working in an area of free movement by recording and processing asylum applications in accordance with the asylum acquis, controlling the external border for the benefit of all and acknowledging the consequences of illegal entry and illegal presence.

I turn to the Accession (Immigration and Worker Authorisation) Regulations 2006. I am very pleased to have the opportunity to present the Government’s proposals on the accession regulations to your Lordships' House. The accession of Bulgaria and Romania to the EU is an object of real and legitimate public interest and it is right that this House should have the opportunity to debate these proposals. Managed migration is good for our economy and is in the interests of the UK. It was this principle which informed our approach to the accession of the new member states two years ago. Accession migration has been a success and migrants from those countries are filling gaps in our labour market and helping to deliver public services.

Managed migration does not raise only economic issues. We must look not only to the economic impacts of our approach, but also to the social effect. There are public services on which accession state migration has not impacted, such as the National Health Service. Indeed, migrants from those countries are often working in our public services. However, there have also been some transitional impacts, with quite large numbers of people arriving in a short period of time, especially in areas where migration has not been a feature of life until now, which can have an impact on the community, private housing and local services such as schools. That is why we will take a gradual approach to this round of accession. We want to make sure that we understand the pressures which migration from the accession countries has created and will create. Our approach will take into account the needs of the labour market, the impact of EU expansion and the positions adopted by our fellow member states.

That is why we propose placing restrictions on Bulgarian and Romanian nationals who seek to work. Most skilled workers will need to obtain a worker authorisation document if they wish to work here. Many people in this situation will apply under the equivalent of the work permit scheme. This means that their prospective employer will need to show that there are no suitable workers from the UK or from the rest of the European Economic Area. Accession nationals will also be able to obtain this document if they wish to apply under other categories of the immigration rules, such as those applying to ministers of religion and au pairs.

Highly skilled migrants will not need to obtain a work authorisation document; they can apply under provisions equivalent to schemes such as the highly skilled migrant programme. Some Bulgarian and Romanian nationals will be able to come to the UK to do low-skilled work, but they will be restricted to jobs in the agricultural and food-processing sectors, although we will listen to representations from other parts of the economy which feel that they need low-skilled workers. There will be a quota on these schemes of 19,750. We will also be restricting these schemes to Bulgarian and Romanian nationals upon accession, which is in line with the principles of Community preference.

Students will still be able to come to the UK as now and, if they do not wish to work, they will not need to apply for any documentation. If they do wish to work—for up to 20 hours a week—they will need to apply for a registration certificate. We cannot place restrictions on the self-employed. We will take measures to make sure that people who are really working do not pose as self-employed persons.

We are proposing new powers to help us to enforce the system. It will be an offence for an employer to employ a Bulgarian or Romanian national who needs a worker authorisation document but who does not have one, or who is undertaking work other than that specified in the document. Individual workers in this situation will also be committing an offence, for which they may face prosecution, although this will be waived if the individual pays a fixed penalty. It will also be an offence for a Bulgarian or Romanian national to seek to obtain a worker authorisation card by deception.

In implementing this system, we are also catering for the needs of law-abiding employers. We will introduce an information campaign for them, backed up by a toolkit and helpline to ensure that companies are aware of the rules and of their responsibilities under the new system. We wish to work with employers to make sure that the new system benefits private enterprise and the whole economy. We are also working with the International Organisation for Migration to provide Bulgarian and Romanian nationals with information on how the rules will function. That will stress to prospective migrants the need to check their rights before they travel to the UK and the need, in most cases, not to travel to seek work.

The regulations themselves are for a total period of five years. This reflects the fact that after two years we are required to notify the Commission if we intend to maintain the restrictions. We can then maintain them for a further three years. However, we are committed to reviewing these arrangements within 12 months. I believe that these regulations enable us to pursue a controlled, managed approach to migration which is in the interests of the UK economy. I beg to move.

Moved, That the draft order laid before the House on 16 November be approved. 2nd Report from the Statutory Instruments Committee.—(Lord Bassam of Brighton.)

My Lords, I shall deal first with the Asylum (First List of Safe Countries) (Amendment) Order. We indeed welcome the accession of Bulgaria and Romania to the European Union. We are concerned to ensure that asylum claims are dealt with as speedily and accurately as possible. I am grateful to the Minister for setting out the procedure for so doing. It is certainly not in the interests of the state or the individual if deportation is a lengthy process. However, that does not mean that these orders are uncontentious.

First, I address the issues raised by the Asylum (First List of Safe Countries) (Amendment) Order. As the Minister said, Bulgaria and Romania will join the EU on 1 January next. It is axiomatic that they should therefore be expected to be safe countries alongside existing members of the European Union. Their membership should surely not have been agreed had that not been the case.

By passing this order, the House is accepting that it is right that any third country national who has made an asylum or human rights claim in the United Kingdom may be removed to Bulgaria or Romania if that is appropriate under the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. All European Union member states and states in the European Economic Area are on that list.

The Minister will, however, be aware of the concerns that have been widely expressed about the lack of readiness of the judicial system in Bulgaria. The latest EU preparedness report, Key findings of the monitoring report on Bulgaria’s preparedness for EU accession, 26 September 2006, highlighted the fact that:

“The main remaining challenges for Bulgaria are: removing ambiguities concerning the independence of the judiciary and the accountability of the judicial system by amending the Constitution; certain elements of the functioning of the Supreme Judicial Council (SJC); the efficiency of the monitoring mechanism of the new Penal Procedure Code; the adoption and implementation of a new Judicial System Act and a new Civil Procedure Code; the limited capacity of the administrative anti-corruption departments in the SJC and in the Prosecution services”.

What is the Government’s view on that assessment? What representations have they made to the Bulgarian Government while they were preparing to bring this order before the House? What guarantees have they obtained that the defects identified will be remedied? What is the timetable for that action?

In the case of Romania, the Government will be aware that the monitoring report on that country’s preparedness for EU accession stated:

“Romania now needs to ensure a more consistent interpretation and application of the law”.

What representations have been made to Romania in advance of bringing forward this order, and what response have they received?

Furthermore, there are widespread concerns about the treatment in both countries of the Roma community. What guarantees have the Government sought and obtained to ensure that the countries will no longer tolerate discrimination and racist behaviour to the Roma community?

On the immigration and worker authorisation regulations, we welcome the new limits that the Government say that they will place on Bulgarian and Romanian workers entering the United Kingdom. This is a vital area of policy that will affect the economy, public services and community relations, yet several important questions remain to be answered.

Our experience of the Government’s mishandling of the admission of workers from the A8 countries makes us very cautious when judging whether the restrictions brought forward today by the Government will be adequate. Prior to the accession of the A8, the Government indicated that they expected around 15,000 migrant workers to arrive in the United Kingdom. The UK was one of only three countries not to place restrictions on the granting of work permits. It is estimated that in the 18 months following the accession, 447,000 people arrived in the United Kingdom. This figure rises to nearly 600,000 when self-employed people such as builders and plumbers are included.

What is the Government’s estimate now of the number who will come from the A2 countries to seek work here in the first two years? What estimates have they made of the number who will ultimately settle and bring their families and dependants to the UK? What estimates have been made of the number who will seek self-employment in the United Kingdom? What will be the proof required that their employment is genuinely self-employment and that they are not simply employees posing as contractors? The Minister referred to the need to make sure that such workers do not evade the law and the regulations.

I note that those who come here to work in low-skilled jobs in agriculture and food processing will have their right to work limited to six months. Does that mean in total in their working lifetime, or are they able to return to Bulgaria or Romania at the end of that period for a matter of days, obtain a further accession worker card, return to the United Kingdom and start another period of six months’ exemption? That would clearly be unacceptable. I suggest that the position is not made clear by the drafting of paragraph (9)(3) of Article 3 of the order. I would be very grateful if the Minister could put the position clearly on the record today.

We do not oppose the making of the order but we enter severe reservations about the ability of the Government to make the system work effectively. We will judge whether the restrictions have a desirable practical effect once they have operated for a time. We must keep a close scrutiny of this very important matter.

My Lords, I very much support the questions put by the noble Viscount, Lord Bridgeman.

The asylum amendment order adds Bulgaria and Romania to the list of safe third countries to which an asylum seeker can be removed from the United Kingdom without consideration of the merits of his asylum claim. We ought to be very clear about that.

We raised this concern during the passage of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 when my noble friend Lord Avebury said:

“Clause 18 and Schedule 3 create a new and fiendishly complicated structure of ‘safe country’ provisions which allow a person to be removed without substantive consideration of his asylum application … There are now four sets of circumstances in which a person may be removed without a right of appeal, arranged according to the degree of confidence in their safety.

The first category is removal to states where a person is deemed to be safe vis-à-vis both the Refugee Convention and the ECHR … The second category comprises unnamed states which are deemed to be Refugee Convention safe, but not necessarily safe from refoulement to a country where a person may not be safe … The third category comprises another empty list, also Refugee Convention safe, but where claims based on the ECHR may be certified as clearly unfounded.

“Finally, there is individual certification, which may be applied to a person who is not a national of the country to which he is being sent, if he is not at risk of being refouled and is not at risk of being persecuted there for any Refugee Convention reason”.—[Official Report, 27/4/04; col. 718.]

We have moved from the previous requirements where each case had to be individually certified. I am uneasy whenever we speak about “safe countries”. I want a clear assurance from the Minister that if a country was not operating to the letter of the human rights convention, its inclusion on the list should be seriously reconsidered. This undertaking was given in the other place during the debate in Standing Committee on 22 January and should apply to Bulgaria and Romania.

On Bulgaria and Romania, the regulations make transitional provision to take account of the free movement rights that nationals from these states will have on accession. They also set up a worker authorisation scheme restricting access by Bulgarian and Romanian nationals to the UK labour market during a five-year transitional period. Under the terms of the EU accession treaties governing Bulgarian and Romanian entry into the EU, Britain is perfectly within its rights to introduce transitional arrangements before full access to Bulgarian and Romanian workers is granted. All EU countries have the option to keep such transitional measures in place for a maximum of seven years. There is no dispute on that particular provision. However, certain transitional measures should not be undertaken lightly. They should be clearly justified, workable and fair in their application, and lifted at the earliest possible opportunity.

We remain of the view that it is clearly beneficial to the British economy to support an open approach to labour migration within the European Union. Indeed, it is a right that hundreds of thousands of Britons exploit to their advantage by living and working elsewhere in the European Union. None the less, we acknowledge that legitimate concerns have been raised about the temporary effect of a much larger than expected inflow of labour from Poland and other accession countries in recent years. The effect on housing, schooling and overstretched local government resources in some specific areas has been significant.

The fact that the Home Office dramatically underestimated the number of newcomers to the UK from those countries has clearly dented public confidence in the system. Our view is that any transitional measures are workable only if they are developed in close co-ordination with the other EU countries that are likely to prove attractive to Bulgarian and Romanian workers. Given the presence of large, settled Bulgarian and Romanian communities in Spain and particularly Italy, it is essential that government measures to manage the flow of Bulgarian and Romanian migrants are similar in nature and timetable to a temporary restriction applied to those two countries.

To date, the Government have not given any indication that they have made an attempt to work in co-ordination with the EU member states on their proposals. Indeed, the Home Secretary has announced a series of unilateral measures that are almost certain to prove unworkable and difficult to enforce in practice. We will certainly closely scrutinise the implications of the Government’s measure, and we will continue to put forward a more rational approach to the issues of principle and practice that are at stake.

My Lords, at first sight, the order on safe countries is a housekeeping measure to ensure that Bulgaria and Romania are merely added to the list of safe third countries as they become members of the European Union. I recognise that this is about the removal of third country nationals. However, it gives me the opportunity to reflect briefly on the merits of such a transition. We belong to a club with rules, but as the second statutory instrument shows, we can sometimes make up our own rules too. We cannot automatically assume that these two countries will become safe for asylum seekers overnight. No country can be said to be safe for everyone.

The noble Viscount has already mentioned the judiciary in Bulgaria. There are still serious human rights violations against citizens of those countries from which the state may be unable to protect them and others. The noble Lord, Lord Dholakia, has again drawn attention to the individual merits of asylum cases. Can the Minister confirm that once a country is declared safe, no proper risk assessment is carried out before an asylum seeker or a trafficked person is removed to that country? Does that not mean that individual circumstances will inevitably be overlooked?

There was a recent case of a woman who was retrafficked from the Ukraine to the UK, after which she was promptly removed without any assessment being carried out. Victims of trafficking from Bulgaria and Romania, who may also be third country nationals, may have protection needs elsewhere or in the UK. Women and children who are tricked into trafficking are still potential victims of further abuse or reprisals after their forced return. Debt bondage is another subtle form of family coercion. A number of trafficked Roma persons are known to have been retrafficked after their return, as family members were involved in the crime, and they had no protection against repeated exploitation. Those cases may or may not be subject to this order.

All I am saying is that we must ensure that the Government address their needs as victims of crime and ensure their safety. It cannot be assumed that every victim of trafficking would now be safe on their removal to Bulgaria or Romania solely by virtue of their being accession countries. There are concerns about this order among the refugee agencies. It might also help if the Government looked again at the UK action plan on trafficking and prepared guidelines on how best to apply the principle of “safe country” to individual circumstances.

My Lords, I thank the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Dholakia, for engaging in a serious discussion and debate on the issues and for responding to my opening remarks in a constructive way. I pay tribute to them for that. I thank the noble Earl, Lord Sandwich, for his contribution as well. Although there are obviously critical questions behind what we propose, there is an acceptance in your Lordships’ House of the importance of these issues and of trying to get them right. Obviously, at different stages, there will not always be entire satisfaction and agreement on the nature of the measures that the Government have to take in this field, which we all accept and acknowledge is not an easy one.

In seeking to add Bulgaria and Romania to the list of safe third countries, we are taking the right step to acknowledge the accession of Bulgaria and Romania and, in particular, participation in the Dublin II arrangements. It is important to remember that this provision is not about sending people back to a country of origin, but to a country that we believe is better placed to deal with the claim under international law. The asylum systems in Bulgaria and Romania have been through a process of scrutiny, which is right. That has been undertaken, in essence, by the European Commission as part of the accession process. They were not found wanting in that assessment.

I understand the concerns that have been raised about some of the treatment of minorities that is felt to have been adverse, particularly so far as the Roma are concerned. But we have to play by the rules, and the rules are set out in the accession process. We have to use that process to measure how things are and how things have changed in the past. That is an important part of a country going through the accession process and conforming to standards of which we are rightly proud. It is fair to say that the Commission assessed both countries against the requirements of the acquis on asylum, the common European asylum system, to make that approval of accession. Their assessed suitability for joining the EU is an important factor, reflecting the standards of protection for asylum seekers. The Home Office has undertaken research from a variety of sources to satisfy ourselves that Bulgaria and Romania have procedures in place to ensure that an individual will not be exposed to persecution either in that safe third country or by refoulement to the country of origin in breach of the refugee convention.

What sources did we use? We used, for example, the European Commission monitoring reports on accession, the UNHCR reports, the US Department of State reports on human rights practices and our own country research. The noble Viscount, Lord Bridgeman, raised the concern about what the Commission said about the asylum systems in Bulgaria and Romania. We acknowledge that initially there were some concerns, but the format of the Commission’s monitoring reports is to comment on any areas where matters were outstanding from previous reports and where further work would be of benefit. In the final report of September 2006—the monitoring report relating to accession on 1 January 2007—the Commission did not detail any remaining concerns about either country meeting the justice and human affairs asylum acquis. So the Commission was satisfied that those standards had been reached.

The only comment on asylum was a reference on page 26 of the September 2006 monitoring report to the fact that in Bulgaria the administrative capacity of the agency for refugees had been adequately strengthened. We play by the rules and the judgments that are made on these matters; and the judgments were not found wanting—indeed, there was active support for measures that had been taken to remedy what had been seen at an earlier stage as defects.

The noble Viscount, Lord Bridgeman, raised concerns about Roma. The order concerns essentially the removal of third country nationals, not the removal of Roma. The noble Viscount has used this opportunity to raise that issue and, of course, we have in the past expressed our concern, but we do not believe that that is an issue at present. We think that progress has been made by bringing Bulgaria and Romania into the fold of the European Union. We acknowledge the history of the Roma and where they have come from but we know that these issues have been of concern.

The noble Viscount also asked what representations had been made with regard to the penal code. The points made in the September 2006 monitoring report do not concern the application of the asylum law. Concerns have been raised regarding corruption and organised crime but those are not covered by that report. We have not made independent representations on those issues.

It is not possible to make precise predictions regarding the future, but if a state’s processes and structures began to deteriorate to a point where, in general, international obligations were no longer being met, of course we would want to take steps and make representations. However, we would expect that steps would have been taken in any event to address any concerns expressed at Community level, given that the countries concerned would not have met EU standards. All members of the EU have to be bound by EU asylum instruments.

The noble Earl, Lord Sandwich, raised the issue of people who are trafficked and retrafficked. Again, the order concerns asylum seekers, not victims of trafficking. We are concerned about this issue and the noble Earl has taken part in debates on it with myself and others representing the Government on a number of occasions. We clearly need to work with our EU partners on this issue. We believe that both Bulgaria and Romania are safe for refugee convention purposes but that such issues could be raised in human rights claims and considered in the normal way. I thank the noble Earl for raising the issue, but this is not the most appropriate forum to discuss it.

My Lords, I am sorry to press the point, but I emphasised that the order affects those from third countries who happen to be in those two countries.

My Lords, I shall reflect on what the noble Earl has said and if there are some relevant points of detail, I shall write to him and share that information with other noble Lords who have spoken.

The arrangements regarding the Accession (Immigration and Worker Authorisation) Regulations are in the best interests of the United Kingdom because we believe that migration is of benefit to us economically. There is consensus on that issue. We need there to be confidence in the system that we respond properly to concerns raised by the public about the impact of these measures. If we did not do that, the public might expect more drastic action that would not be in the best interests of the UK.

We are welcoming highly skilled migrants who will have free access to our labour market. We welcome skilled workers, too, but we need to be satisfied that they will not displace resident labour—and that is the explanation of the way that the order will work. We welcome low-skilled labour if we are satisfied that there is a real need for it and that there are insufficient workers from other EU states; and of course we welcome working students, provided that they operate within the rules.

These proposals are in tune with our broader policies on immigration and migration where they are in the interests of the United Kingdom, but we act to control and tackle abuse. We must ensure that migration is used to strengthen our economy, but we need to balance that by paying attention to its social impact, sharing responsibility for migration with people such as employers who benefit from it, but also working with employers to ensure that they benefit from the new system.

The noble Viscount, Lord Bridgeman, asked for an estimate of how many A2 nationals might come to the United Kingdom within the terms of the order. Perhaps with the benefit of hindsight, we believe that it would be inappropriate for the Government to make precise predictions. The number of skilled A2 workers who will come will depend on the skills gaps in the economy. As I made clear in my opening remarks, we will apply a quota of 19,750 A2 nationals who can access our schemes for lower-skilled migrants. For what it is worth, the 2001 census revealed that some 7,500 Romanians and 5,350 Bulgarians already lived in Britain and that suggests that we are entering a stage where we are right to have set out a more managed approach to issues of migration from accession states.

The noble Viscount raised the issue of contractors. To ensure compliance, we intend to make workplace-based checks. Revenue and Customs will co-operate and assist us with that work. On low-skilled workers generally, the answer to the noble Viscount’s point is that, yes, they can leave and come back, but coming for six months in one year and six months in the following year would break the continuity of residence.

I think that I have answered most of the points raised by noble Lords. If I have not, I will study Hansard closely, try to respond to their points in writing and share that information, as I usually do.

My Lords, I am well aware that the points raised in the report on preparedness covered departments that are outwith the scope of the order, but they nevertheless form a background of concern to the House in respect of the preparedness of the whole governmental system, particularly in Bulgaria. Will the Minister write to me on those points, on the Government’s response to the report and on whether they are satisfied that the necessary requirements have been met?

My Lords, I thought that I had responded to that point in reference to the Commission report. I shall study the noble Viscount’s point and happily write to him on any of the issues that perhaps we may not have adequately covered in this limited exchange.

My Lords, perhaps the Minister might send me a copy, too, because I shall be interested in his response.

My Lords, it should be taken as read that I shall share that information with other noble Lords who have been involved in this discussion.

On Question, Motion agreed to.